Ecolawgic
The Logic of Ecosystems and the Rule of Law
Ecolawgic (ē ko'läj'ik) 1 The logic of
ecosystems applied to the law. 2 Order
without direction. 3 Reconciliation of
individual autonomy, free markets and
environmental protection. 4 The
foundation for a systemic rule of law.
5 A contrarian environmental manifesto.
Bruce Pardy
Ecolawgic
The logic of ecosystems and the rule of law
Bruce Pardy
Ecolawgic
Ecolawgic (ē ko'läj'ik) 1 The logic of
ecosystems applied to the law. 2 Order
without direction. 3 Reconciliation of
individual autonomy, free markets and
environmental protection. 4 The foundation
for a systemic rule of law. 5 A contrarian
environmental manifesto.
Bruce Pardy
Professor of Law
Queen’s University
Kingston, Ontario, Canada
Fifth Forum Press
Copyright © 2015 by Bruce Pardy
All rights reserved. The use of any part of this publication reproduced,
transmitted in any form or by any means, electronic, mechanical,
photocopied, recorded or otherwise, or stored in a retrieval system,
without the prior written consent of the copyright holder except in
accordance with the provisions of the Copyright Act is an infringement
of copyright.
Library and Archives Canada Cataloguing in Publication
Pardy, Bruce, 1964-, author
Ecolawgic: the logic of ecosystems and the rule of law / Bruce
Pardy.
Includes bibliographical references.
Issued in print and electronic formats.
ISBN 978-0-9780256-2-5 (pbk)--ISBN 978-0-9780256-3-2 (pdf)
1. Law--Philosophy. 2. Ecology--Philosophy. 3. Environmental
law. 4. Ecosystem management. 5. Ecology--Economic aspects. 6.
Law and economic development. I. Title.
K330.P37 2015
340'.112
C2015-902524-9
C2015-902525-7
Published by Fifth Forum Press
Comments to the author are welcome at [email protected]
Printed and bound in Canada
For my dad
Acknowledgements
I would like to thank Rachel Barker, Gannon Beaulne, Amanda
Cohen, Jess Fortner, Brian Kolenda, Victoria Lee and Daniel
Rosenbluth for their excellent research assistance; the Law
Foundation of Ontario and Queen’s law school for funding their
research time; and Julie Ashford, Erin Sullivan, Ingrid Bron,
Niko Soininen, Froukje Maria Platjouw, Kerry Freek, Ellen
Waldman, Susan Dudley and Amber Hari for their helpful
comments.
I am grateful to the Property and Environment Research Center
(PERC) in Bozeman, Montana for the opportunity to visit as a
Julian Simon Fellow in the fall of 2011, when much of the work
was completed. Terry Anderson, Daniel Benjamin, Monica
Guenther, Laura Huggins and PJ Hill were gracious and
engaging hosts and I thank them for their generous hospitality
and the chance to spend some time in PERC’s stimulating and
congenial environment. Dianna Reinhart, Brennan Jorgensen,
Sharie Rucker and Colleen Lane were always there to help me
out.
This book is, in part, a synthesis of ideas that have been rattling
around in my head, and on the page, for some time. I have
applied, adopted, adapted and borrowed from my previously
published articles including:
“The Logic of Ecosystems: Capitalism, Rights and the Law of
‘Ecosystem Services’” (2014) 5 Journal of Human Rights and the
Environment 136; “Towards an Environmental Rule of Law” (2014) 17
Asia Pacific Journal of Environmental Law 163; “Eviscerating Property
in the Name of Sustainability” (book review) (2012) 3 Journal of
Human Rights and the Environment 292; “The Dark Irony of
International Water Rights” (2011) 28 Pace Environmental Law Review
907; “Environmental Assessment and Three Ways Not To Do
Environmental Law” (2010) 21 Journal of Environmental Law and
Practice 139; “The Hand is Invisible, Nature Knows Best, and Justice is
Blind: Markets, Ecosystems, Legal Instrumentalism and the Natural
Law of Systems” (2009) 44 Tulsa Law Review 67; “The Pardy-Ruhl
Dialogue on Ecosystem Management, Part V: Discretion, ComplexAdaptive Problem Solving, and the Rule of Law” (2008) 25 Pace
Environmental Law Review 341; “Goods, Services and Systems: A
Review of Ruhl, Kant & Lant’s The Law and Policy of Ecosystem
Services” (book review) (2008) 46 Osgoode Hall Law Journal 445;
“Environmental Law and the Paradox of Ecological Citizenship: The
Case for Environmental Libertarianism” (2006) 33 Environments 25;
“Ecosystem Management in Question: A Reply to Ruhl” (2006) Pace
Environmental Law Review 209; “In Search of the Holy Grail of
Environmental Law: A Rule to Solve the Problem” (2005) 1
International Journal of Sustainable Development Law and Policy 29;
"Changing Nature: The Myth of the Inevitability of Ecosystem
Management" (2003) 20 Pace Environmental Law Review 675;
"Applying the Precautionary Principle to Private Actors: Is it Relevant
to Civil and Criminal Liability?" (2002) 43 Les Cahiers de Droit 63;
“Rules that Define v Rules that Distort: Regulatory Creep Revisited”
[1998] New Zealand Law Journal 352; “Abstraction, Precedent, and
Articulate Consistency: Making Environmental Decisions” (1998) 34
California Western Law Review 427; "Planning for Serfdom: Resource
Management and the Rule of Law" [1997] New Zealand Law Journal
69; and "Fault and Cause: Rethinking the Role of Negligent Conduct"
(1995) 3 Tort Law Review 143; "Sustainability: An Ecological
Definition for the Resource Management Act" (1993) 15 New Zealand
Universities Law Review 351; "Ecological Share: A Basis for
Environmental Liability in Tort" (1993) 3 Journal of Environmental
Law and Practice 87.
CONTENTS
Introduction
i
1
The Law Question 1
2
The Logic of Ecosystems
15
3
Ecosystems and Markets
21
4
Ecolawgic: When Law Works as a System
37
5
Ecolawgic: The Right to Autonomy
in Ecosystems and Markets
53
6
Not Ecolawgical: Modern Environmental Law 77
ECOLAWGIC: A Manifesto 109
Notes
113
Introduction
Modern governance is caught between two warring
ideologies. Laissez-faire advocates tend to believe that
conditions in the world are generally improving and will
continue to do so if markets are permitted to operate.
Statists are convinced conditions are deteriorating and
government solutions are needed now more than ever.
Both views may be partly right. The world is a mess, and it
has never been in better shape. There is suffering, conflict
and environmental distress, and more people live better
lives than at any other time in human history. The income
gap is growing, and poverty is steadily abating. Millions
lack access to clean water and food, and more people have
access to clean water and food than ever before.
Ecosystems are deteriorating, and the accessible supply of
resources has never been greater. When it comes to law and
governance, it does not matter which of these facts are true,
or whether they all are.
The basic features of ecosystems and markets are not
controversial. No one versed in the ways of these systems
would seriously propose to control the population of
butterflies or the price of duct tape. Yet result-oriented
government measures and practices have become
commonplace, not because the systems are misunderstood,
but because the role of the state is misconceived.
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Ecolawgic
Government policies are not able to dictate how ecosystems
or markets work. The notion of prescribing particular
ecological or economic ends conflicts with the natural
behaviour of these systems and their immutable rules.
Modern legal regimes do not respect how ecosystems and
markets operate, but ecosystems can provide insight about
how the law should work. Legal decisions should emanate
from a system of governance. Isolated, instrumentalist legal
commands are incompatible with the operation of law as a
system. Providing ad-hoc answers case-by-case is as much
of an affront to legal principles as controlling butterflies is
to the nature of an ecosystem.
Chapter 1 considers the law question: on what premises
should the law be based? The law is a powerful force. It
tells people what they can and cannot do, enforced with the
monopolistic violence of the state. This chapter addresses
the dominant practice of legal instrumentalism – governing
for ends – and identifies disputes about the proper role of
law and discretion in governance. Must the law impose the
tyranny of arbitrary rules upon its citizens? Or are there
non-arbitrary, objective standards that can govern the
exercise of state power?
Chapter 2 describes the logic of ecosystems, where
competition for scarce resources leads to natural selection,
producing evolutionary change. Chapter 3 compares the
nature of ecosystems and markets, and identifies their
common characteristics. Individuals depend on these
systems for survival, and these systems, in turn, consist of
the actions and reactions of autonomous individuals.
Introduction
iii
Chapter 4 outlines an approach to legal governance that
reflects a concept of law itself as a dynamic system, and
Chapter 5 explores the right to autonomy in ecosystems and
markets. Both chapters apply the logic of ecosystems to the
law. Chapter 6 critiques the instrumentalist features of
modern environmental law, and explains why they are at
odds with the logic of ecosystems. The conclusion
summarizes the main features of a system of governance
based on ecolawgic: a manifesto for ecosystems, markets
and the rule of law that reconciles individual autonomy,
free markets and environmental protection.
1
The Law Question
A. Legal Instrumentalism: Law as a Means to an End
The motto “Soit Droit Fait” appears on the crest of the law
school where I teach. Translated, the phrase means “Let
Right Be Done”. It reflects the instrumentalist’s mantra:
law is a means to an end, or a tool for the social good. 1
In modern welfare states, legal instrumentalism abounds.
The proposition that law is a tool to achieve desirable ends
has become so widely ingrained in law and public policy
that it is regarded as self-evident. Courts frequently rely on
policy grounds to justify idiosyncratic results in particular
cases. Governments develop policies and programs
designed to address a multitude of specific social issues.
Legislatures grant administrative agencies broad mandates
with minimal oversight, and officials act with their own
initiative to craft solutions to what they perceive as
pressing community needs. Everywhere state actors take it
upon themselves to pursue the ends they deem appropriate.
2
Ecolawgic
Nowhere is the triumph of instrumentalism more emphatic
than in environmental law, where rule-based governance
has given way to result-based discretionary decisionmaking.
Ecosystem
management,
environmental
assessment, case-by-case environmental approvals, and
context-driven regulatory development and enforcement
dominate the modern practice of environmental law.
Occasional attempts are made to identify or articulate
abstract principles, 2 but these principles tend to be
malleable and vacuous. They provide political and legal
decision-makers with more room, not less, to craft
idiosyncratic results in any particular situation. The
architecture of environmental law enables officials to
control outcomes one situation at a time: Should this
industrial facility be permitted to pollute? Should that
mining site be rehabilitated? How much of this hazardous
substance is to be permitted in plastic bottles? How many
wolves should live in the park? Environmental law has
become a hands-on phenomenon where agency discretion
governs and ad-hoc decisions are commonplace.
An instrumentalist approach to market governance was
once controversial, but now in the economic realm such
measures have become standard practice. Examples
abound: subsidies for the building of manufacturing
facilities and sports stadiums; government bailouts for
troubled banks and car manufacturers; welfare programs to
counter poverty; public spending to create jobs;
government grant programs to support specific towns or
regions; marketing boards for agricultural products;
subsidies for development of alternative energy
technologies; subsidized housing; government-run pension
1 - The Law Question
3
programs; entitlements to child benefits; rebates for energysaving home renovations; and tax incentives for this, that,
and the next thing. These strategies and many more are
designed to provide governments with the ability to manage
commercial activity and the economic behaviour of its
citizens.
(1) Methodology
Instrumentalist law can be legislative or adjudicative, or a
combination of both. In the legislative realm,
instrumentalist statutes are of two types. They consist of
specific rules that apply to particular facts or parties, or
vague rules that grant officials and adjudicators wide
discretion to fashion unique solutions to particular social
problems. These two types of legislation seem quite
different. One is specific and non-discretionary while the
other is vague and very discretionary. However, they are
both instrumentalist in nature, the first because the rule
itself is designed to achieve a specific purpose and the
second because the statute creates a regime within which
particular officials have the discretion to determine specific
outcomes in specific situations. The process of applying the
latter has the effect of producing the former. Applying a
vague, discretionary rule produces a specific rule for a
specific factual circumstance, producing a series of resultoriented, isolated decisions that lack common principles.
Adjudicative instrumentalism relies on result-based
reasoning, the practice of resolving particular cases on the
basis of the desirability of the answer. Written reasons, as
in a court decision, typically make generous use of policy
4
Ecolawgic
grounds and case-specific observations to justify the
decision. 3 Instrumentalism promotes adjudication that
reflects a judge’s personal perception of right and wrong,
and thus submits citizens to coercive control that is
unfettered by democratic accountability. Result-based
decisions are highly discretionary and difficult to challenge
or appeal on the grounds of legal error since the basis of the
decision was not primarily the application of substantive
law in the first place.
In an ideal instrumentalist universe, there is no
independently existing legal content that binds decisionmakers. Such content would constrain them from “doing
right” in each new situation. While instrumentalists do not
go so far as to decry the existence of statutes, it is not
difficult to find examples of courts that view statutory
provisions as narrow fetters on their general discretion,
unfortunate inconveniences to be disregarded or dismissed
when they stand in the way of a proper outcome. 4
(2) Objectives
Utilitarianism, the dominant purpose of instrumentalism, is
an ethical or jurisprudential theory that identifies social
utility as the objective of law and social action. 5 It often
manifests as a rough calculus of benefit and burden
assessed at a community level. Utilitarianism can be
adapted to serve a variety of interests, as benefit and burden
are defined at will. Groups with vastly different agendas
can claim to be utilitarian, defining and redefining the
proper result in accordance with their interests and
preferences, sacrificing the rights of the individual in
1 - The Law Question
5
favour of a vague notion of the collective good. Policy
considerations tend to be offered as rationales to legitimize
arbitrary preferences, 6 masking the subjectivity and moral
relativism inherent in the utilitarian inquiry.
Whether the “right” result reflects economic efficiency,
egalitarian distribution, socially conservative values,
preservation of life, or one of a multitude of other political
preferences depends upon the prevailing belief about what
is good and desirable. Consider, as an illustration, the
school of thought known as law and economics, a
prominent version of utilitarian philosophy. Its working
premise is that society should be ordered in a manner that
produces the maximum aggregate economic welfare. 7
One of the foundational analyses of law and economics is
Ronald Coase’s “The Problem of Social Cost”, 8 written in
1960. In it, Coase analyzed the effects of different legal
arrangements upon overall economic welfare. In situations
where there are zero transaction costs and no serious
impediment to bargaining between parties, Coase said that
conflicts are resolved in an economically efficient way as
long as one of the parties to the conflict has a clear legal
right to restrict the other party. Coase used the example of a
rancher located adjacent to a farmer. The rancher’s animals
wander from the rancher’s property to the farmer’s,
damaging his crops. While it is possible to leap to the
conclusion that the rancher is causing harm to the farmer,
to do so presupposes that the farmer has a legal right to
exclude the rancher. Coase said that in order to know who
imposes costs on whom, one must know who holds the
legal right. If the farmer has the right to exclude, then the
6
Ecolawgic
animals do impose costs on the farmer. But if the rancher
has the right to let his animals roam, then any restriction
inflicted by the farmer is a cost imposed upon the rancher.
According to Coase, as long as one of the parties has a
clearly defined right to restrict the other, the parties will
bargain between themselves to work out an efficient
solution.
In scenarios where there are high transaction costs that
create practical obstacles to negotiation, Coase argued that
an economically efficient solution depends upon an
assessment of the aggregate benefits and costs experienced
by all parties. One of his examples is a railway that runs
through numerous farms. Sparks from the train periodically
cause crops to catch on fire. Because there are many parties
affected by the train, the railway would have difficulty
negotiating with all of them. Some might agree to a
bargained resolution, but others would seek to “free-ride” to be the beneficiaries of a solution without having to
contribute money to achieve it. Should the farmers be able
to hold the railway liable for the loss of the crops? It
depends, Coase suggested, on the value of running the train
and the value of the crops that are lost. If the farmers can be
the lowest-cost avoiders by refraining from growing crops
next to the tracks, then the economically efficient solution
may be to make the railway immune from liability for
damage from the sparks. Coase said that each case must be
assessed on its own merits and that no generic prescriptions
are possible. 9
Coase’s economic analysis is correct: when rights are
allocated in the manner he describes, it produces an
1 - The Law Question
7
economically efficient result that maximizes aggregate
welfare. However, Coase did not address why aggregate
economic welfare is the right value to pursue. Aggregate
welfare is a measure of economic efficiency at a social
level, and ignores the fortunes of individuals whose
interests may be sacrificed in order to achieve the collective
good. Its pursuit can rationalize setting aside rights that
stand in the way. If slavery maximizes overall productivity,
is the right to self-ownership to be suspended?
Coase assumed that the correlation between aggregate
economic welfare and the social good was self-evident. He
identified arrangements that would maximize productivity,
but provided no reasons why that notion of the proper result
should prevail. His analysis is consistent with the
instrumentalist premise that pursuit of the public good is
the most important consideration. The content and
allocation of legal rights depend upon that which the public
good requires, as determined case-by-case. Through
instrumentalist eyes, law is merely a tool. It has no inherent
content of its own. It is bereft of internal sensibility, an
empty vessel that can be filled by whoever is politically or
legally powerful enough to fill it. The right result depends
on who has the reins. Stripped to its core, instrumentalism
is not much more than an unfettered power to coerce. As
Brian Tamanaha describes:
Fundamental disputes exist over what social
justice requires, over the proper trade- offs
between liberty and equality or between formal
and substantive equality, over the enforcement
of moral and religious norms in the public and
private spheres, over the rights of women,
8
Ecolawgic
minorities and gays and lesbians, over the
appropriate distribution of resources and
opportunities, over conditions of employment,
over the balance
between
economic
development and harm to the environment, and
so on. The old faith that the sciences will
supply answers to these questions now smacks
of naiveté – the natural and social sciences are
themselves caught up in the battles among
groups, with contrary studies enlisted to serve
all sides. ... These attitudes fuel the militant
“groupism” that is a standout feature of
contemporary political-legal discourse. ... All of
these various groups confront one another in
various legal arenas – in cause litigation, in
legislative and administrative lobbying, and in
battles over judicial appointments – and
routinely claim to be acting in the name of the
public good. 10
B. The Rule of Law
The instrumentalist’s mandate to achieve the right result
conflicts with the premise of the rule of law that
government decision-makers are not free to do as they
think best, “to innovate at pleasure ... roaming at will in
pursuit of [their] own ideal of beauty or of goodness,” 11 but
are constrained by the content of the law.
Many formulations can be found for the rule of law, 12 but
the essence of the concept is reflected in the term itself:
people are to be ruled by laws rather than by the subjective
inclinations of those in positions of authority. Generally
1 - The Law Question
9
applicable, abstract rules and limited state discretion ensure
that government is subject to the same law as individual
citizens.
Stripped of all technicalities, [the rule of law]
means that government in all its activities is
bound by rules fixed and announced beforehand – rules which make it possible to foresee
with fair certainty how the authority will use its
coercive powers in given circumstances and to
plan one’s individual affairs on the basis of this
knowledge.” 13
The rule of law calls for legal process that is detached and
impersonal, in which general rules are created without a
view to the particular case, and particular cases are resolved
by applying only general rules. In this way, legal disputes
are insulated from individualized notions of justice and
from the politicization of the law. Achieving rule of law
norms is not as easy as it sounds.
(1) How decisions are made: Positivism, formalism and
the myth of mechanical decision-making
In a rule of law universe, law has predetermined content
not subject to the whims of the decision-maker. The
methodological premise of the rule of law is that decisionmakers are the instruments through which law is applied14
but are not the source of the law. 15
Positivism offers a simple definition of law: statutes
enacted by legislatures, regulations created pursuant to
statutory authority, and common law precedents. For the
10
Ecolawgic
positivists, laws are simply commands, and there is no
necessary connection between law and morals 16 or between
law and public good. These laws bind courts and
administrative officials. No other content with the force of
law exists.
The most literal variation of a rule of law approach is
formalism, which has come to stand for a rigid, formulaic
conception of law in which legal rules are mechanically
applied to facts in order to produce an objective answer. 17
Formalism is jurisprudence’s version of the computer. If
the inputs are correct – accurate facts and the relevant law –
then the outputs should follow as a matter of course without
the interjection of the subjective preferences of the
decision-maker.
If adjudication actually worked this way, then a literal rule
of law free from the personal inclinations of state officers
would be possible. 18 However, formalist theory is
susceptible to the criticism that its ideals do not reflect the
actual dynamics of legal problem solving. The difficulty is
not simply that legal officers are seduced by the temptation
to reflect their personal preferences, but that the process of
applying general rules to specific facts relies on language,
which contains inherent ambiguities within which skilled
legal practitioners can bob and weave. 19 Answers in hard
cases are not formulaic or automatic but call for
interpretation, reasoning, and argument. 20 Similarly,
positivism’s main conceptual difficulty derives from the
inevitable gaps that arise between rules. If there is no other
source of law to fill gaps, then once a gap arises, the
decision must be discretionary. 21 Thus, it is possible within
1 - The Law Question
11
a positivist approach to end up with instrumentalist
decisions.
(2) What law consists of: Natural law and the fallacy of
moral reasoning
Natural law takes a different tack. Although like formalism
and positivism, it belongs under the rule of law umbrella,
the premise of natural law is that there are objective moral
truths that apply to all human beings and upon which laws
should be based. 22 Natural law contains inherent,
substantive limits on what legislatures and judges can do, 23
a “notion that there are legal limits on law itself, limits
derived from divine law, natural principle, reason, or
customs descended from time immemorial.” 24 Natural law
is a “higher” law, based upon universal and immutable
truths, 25 whose purpose is to reflect what is good for human
beings. 26 The earliest formulations of natural law theory
linked reason with some notion of a deity, 27 and thus
tended to be influenced by theology. Contemporary revival
of natural law ideas reflect a wide spectrum of content,
from Fuller’s eight minimum procedural requirements 28 to
Finnis’ seven human goods or basic forms of human
flourishing. 29
The purpose of moral reasoning is to discern the good and
right way to live. It has much to offer as an exploration of
personal perspective and belief, but it has questionable
validity as a justification for coercive rules. The rationale
for basing law on morality is that it is a non-arbitrary,
uniform standard that is true for all human beings. 30
However, the many volumes of moral reasoning produced
12
Ecolawgic
by philosophers and legal theorists throughout the years
illustrate the opposite truth: moral standards are personal,
arbitrary, subjective, and cannot be proven to be
otherwise. 31 One can see the subjectivity of those
preferences simply by observing the wide variation
between natural law’s abstract characteristics as proposed
by Fuller, the substantive content proposed by Finnis, and
the libertarian conclusions of Nozick.32 When the layers of
such works are scraped away to find the rock on which
natural law is to be based, one finds mere assertions that
reflect the premises that their authors take to be selfevident, as though these premises were propositions with
which any right-thinking person would agree. 33
But “right-thinking” people disagree. Absolute moral truths
may or may not exist. If they do, no one has yet proven
what they are. Therefore, even if there are ultimate Rights
and Wrongs that exist independently of social mores,
cultural conventions, and religious codes, laws should not
pretend to be based upon them. To do so would be to
impose subjective preferences on people who do not agree.
Since natural law claims to be based upon moral absolutes
rather than public opinion, it is not sufficient to establish
their validity by pointing to majority opinion or public
consensus. The agreement of a majority of people about
moral absolutes simply means that they agree, not that the
moral absolutes that they agree about are, in fact, absolute.
Twenty years hence public opinion may have shifted, but
by definition moral absolutes never do. If the real criterion
is majority opinion, then the principle of basing laws upon
universal morality is a fiction.
1 - The Law Question
13
The main difficulty with the concept of natural law is that it
calls upon the state to enforce particular views about
morality and goodness. The idea that there are inherent
moral limitations on the power of legislatures or judges is
burdened by the subjectivity of moral preferences and the
diversity of views within a pluralistic society, which makes
the proposition of immutable natural law difficult to
maintain. 34 Therefore, to base legal rules on a particular
notion of natural law would achieve the opposite of what it
claims: rather than reflecting a universal, immutable human
code of good, it would necessarily reflect a subjective
opinion of what is right. Therefore, the law should not
pretend to be based upon morality. Indeed, natural law
propositions that are based upon moral preferences are
problematic in the same way as instrumentalism. They
presume the rightness of a view that is, in the end, just a
view.
C. Conclusion: The Law Question
If law is not to be based upon morality, or upon a utilitarian
cost-benefit analysis, or upon a particular view of the
public interest, then upon what should it be based? Natural
law and instrumentalism start in opposite corners, the
former proposing that law has inherent content that limits
the actions of state officials and the latter denying that it
does or that it should. However, their abstract goals are
strangely similar: both seek to give legal force to subjective
preferences. These preferences are found either within the
particular version of natural law being professed as natural
or within the instrumentalist priorities of officials crafting
solutions.
14
Ecolawgic
In the absence of natural law, law is a vacuum. It can be
filled by whatever interest manages to gain access to state
power to achieve particular ends. The alternative is to
prescribe predetermined legal content that reflects an
objective truth about what is good, desirable, right, and
proper – but that proposition is a fiction. It would entrench
a particular view about what is good that, in a pluralist
society, cannot reflect the predilections of all members of
the community to which it is applied.
What is the alternative? What approach can protect against
arbitrary exercise of state power used to pursue particular
ends, be they evil or benevolent, and avoid the imposition
of one group’s priorities over others? Are there standards
that are natural, unassailable, objectively true, and
independent of human preference? Is there a non-arbitrary,
uniform principle on which the law can be based?
2
The Logic of Ecosystems
A. Ecosystems
You may think of your body as a thing. After all, it has a
physical existence and identifiable boundaries. It is a solid
object, with mass and substance, and you know where your
body ends and the rest of the world begins. Atoms and
molecules make up cells, which make up organs and tissue,
which make your body the thing that it is.
Except that it is not a thing in the same way as a chair or a
rock. Like chairs and rocks, at this moment your body is
made up of a particular collection of atoms and molecules.
But unlike these objects, every day some of your atoms and
molecules are lost, and others replace them. You consist of
different material today than yesterday, last year, and ten
years ago. New atoms and molecules are laid down in a
particular place and manner, so that they interact with the
others just so. Those particular combinations and
interactions are what make you unique. You are not a fixed
16
Ecolawgic
object but a pattern – the product of a system of processes
expressing a package of information.
Ecosystems are not things either. Unlike bodies, rocks and
basketballs, they do not even have physical shapes or
boundaries. Nor do they consist of a particular set of
materials. Instead, they are intangible systems producing
patterns and outcomes. An ecosystem is a model that
explains the dynamics of interactions amongst living and
non-living elements that function as a system. 35 These
systems are not just collections of organisms – crickets and
water lilies – but consist of relationships and interactions
that together amount to something different from the sum
of their parts. They operate according to their own
immutable characteristics and rules. The way ecosystems
work defines what they are.
Ecosystems exist in infinite variation. Like snowflakes, no
two systems are identical. Nevertheless, use of the word
“ecosystem” to describe a phenomenon carries a meaning,
in the same way that calling something a “machine” means
something. To a young child, a sewing machine and a
forklift are completely different things. They are vastly
different in size, shape, sound, and function. In spite of
their differences, these two things do in fact have much in
common: they have motors; run on an external source of
energy; are made of moving parts; are directed by human
beings; and occasionally require repairs.
Similarly, ecosystems share the following characteristics:
They all contain living and non-living elements. They have
some degree of diversity – of species, genes, chemicals,
2 – The Logic of Ecosystems
17
patterns and communities. They have some degree of
resilience – the tendency to maintain relationships between
system elements in the presence of disturbances.
Ecosystems do differ in their degrees of resilience but all
possess a measure of resilience. They have a one-way net
flow of energy, from outside to inside, which facilitates the
circulation of materials within the system from one form to
another. Ecosystems have carrying capacities for particular
kinds of organisms – different capacities for different
organisms in different systems, but all ecosystems have
some capacity for some organisms. Ecosystems exist in a
state of non-equilibrium, meaning that they are in a
continuous process of evolution and change. Sometimes the
change is rapid and sometimes extremely slow, but there is
no such thing as a climax state from which there can be no
change. Ecosystems evolve in one direction – they do not
typically return to a previous state, but evolve to a new
form.
B. The Logic of Ecosystems
In ecosystems, population growth makes resources
scarce. 36 Because resources are scarce, competition for
resources is inevitable. 37 Some organisms obtain the
resources necessary to survive and reproduce, and others do
not. 38 In this way, competition for scarce resources in
ecosystems is the dynamic that drives natural selection. 39
When organisms succeed, their genes are passed to the next
generation. When they fail, they become a genetic dead
end.
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Ecolawgic
Natural selection is the engine of evolution. 40 As the
genetic makeup of populations changes through time by
natural selection, new genetic variations emerge, and
species evolve. Genetic variation that impedes survival is
weeded out. Variations can alternatively be beneficial if
they provide a survival advantage. 41 When the organisms
that hold advantageous genes reproduce, they pass the
adaptation on to their offspring. 42 Natural selection
produces a genetic makeup that determines anatomy,
physiology and behaviour. 43
The logic of ecosystems is thus: competition for scarce
resources leads to natural selection, where those organisms
better adapted to ecosystem conditions survive and
reproduce, leading to evolutionary change. 44 All
participants are equally subject to their forces; systems do
not play favourites. 45
... natural selection is a purposeless process but
an efficacious one. Impersonal, blind to the
future, it has no goals, only results. Its sole
standards of valuation are survival and
reproductive success.
From scattershot
variations, culled and accreted, it produces
pragmatic forms of order. Its driving factors
are hyperfecundity and mortal competition; its
products and by-products are adaptation,
complexity, and diversity. 46
To say that organisms compete for scarce resources is not
to suggest that they are always engaged in direct physical
struggle. 47 Conflict between organisms can indeed be
direct, violent and deadly, such as when predators consume
2 – The Logic of Ecosystems
19
prey. However, there are many ways to compete, 48 and
competition in ecosystems encompasses a diverse array of
adaptations and strategies. Survival does not necessarily
depend on being the largest, fastest or most ferocious, but
on being effectively adapted to the requirements of the
environment in which the organism lives. 49 Relationships
between organisms cover the spectrum between conflict
and coexistence: predation, parasitism, symbiosis, mutual
dependence and cooperation. 50
Ecosystems have no purposes, interests or goals, only
dynamics and consequences. 51 Organisms succeed in
ecosystems by surviving to reproduce, but an ecosystem
cannot succeed or fail. Their systems of interactions may
evolve into a system of greater or lesser complexity, greater
or lesser diversity, or even fade away altogether. The nature
of evolution is always “correct” because it is dictated by
and is a reflection of interactions and adaptations.
3
Ecosystems and Markets
A. Markets
A hunter kills a deer. A woodworker makes a set of chairs.
The hunter already has meat for the winter, and the
woodworker already has chairs in her house. The result: a
trade. 52
In ecosystem terms, trading is a behavioural adaptation.
Humans who exchange goods improve their access to
resources and thus their prospects of surviving and
reproducing. The hunter, adept at finding food, obtains
chairs much more easily by killing a deer than by making
furniture; for the woodworker, the reverse is true. Using
their comparative advantages makes both better off. The
pattern of trade that results is a market.
Where ecosystems consist of interactions between living
and non-living elements, markets consists of transactions
between people and the dynamics that they create. Like
ecosystems, markets do not really exist except as the
22
Ecolawgic
aggregate results of a set of transactions. They are not
collections of goods, or buyers or sellers, or places where
things are bought and sold, although one may find all of
these things interacting in markets. 53 Markets express and
process information and produce patterns and outcomes.
People are apt to think of markets as highly formalized
commercial transactions in which people buy and sell
goods and services with money, but in the abstract, markets
are simply systems of human exchanges of many types.
Like ecosystems, markets are engines of adaptation. The
way markets work is what they are.
Ecosystems and markets are both dynamic systems and
share important features. 54 Like ecosystems, markets have
dynamics but no goals. They do not exist to accomplish an
objective. Both systems operate according to their own
immutable characteristics and rules. Like ecosystems,
markets are organic and evolutionary, changing through
time, rather than existing in a fixed or static state. All
participants are equally subject to their forces; systems do
not play favourites. Markets arise spontaneously whenever
people think they will be better off by trading. Laws and
governments can make markets more stable and efficient,
such as by enforcing contracts and creating a supply of
money, but they create neither the activity of trading nor
the market dynamics that the transactions create. 55
The logic of mutual gain from voluntary
exchange is perfectly general. It rests only on
the self-interest of individuals in a world of
scarcity. It is not particular to one culture, one
time, or one set of values. Most important for
these purposes, the logic of exchange is not role
3 – Ecosystems and Markets
23
specific. It does not speak about one set of
rules for employers and another for employees,
or one set for landlords and another for tenants.
It does not create one set of rules for people
who are rich and powerful and another set for
those who are frail or meek. Instead, the law
speaks about two hardy standbys in all
contractual arrangements: A and B. These
people are colorless, odourless, and timeless, of
no known nationality, age, race, or sex. These
people are self-conscious abstractions known to
be false as representations of people in the
world, and useful precisely because they are so
detached from any grubby set of particulars. 56
In the narrow sense, markets consist of transactions
between buyers and sellers for particular goods or services.
But markets can be thought of more broadly as systems of
bargains between people. Some markets, such as a stock
exchange, are highly formalized and have strictly defined
requirements for the completion of transactions. Others,
such as the local farmers market, are less so, although even
at the farmers market, transactions are subject to the basic
laws of contract. Other markets are even more informal and
do not involve money at all, yet still consist of exchanges.
Marriage is a transaction, as is becoming a member of a
church or voting for a particular candidate in an election.
Not all exchanges are legally binding or amount to
enforceable contracts, but they all consist of bargains and
trade-offs.
People bargain when both parties perceive a benefit.
Buyers trade $4 for a bag of apples if they want apples
more than they want to keep their $4. Perhaps they want the
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Ecolawgic
apples if they are fresh, or if they are a preferred variety, or
if there are no comparable apples nearby for a better price.
For whatever reason, they prefer the apples to the other
goods they might be able to acquire for $4.
The same dynamics apply to a wide variety of human
interactions. A host plans a dinner party. Should she invite
Gus? If it is more valuable to have him attend than to leave
him out, the answer will be yes. What factors go into that
calculation is entirely up to the host. Perhaps Gus has a
great sense of humour and would make dinner fun. Maybe
she owes Gus a social invitation because Gus invited her to
a party on an earlier occasion. Perhaps Gus is a close friend
whose company she enjoys, or a new acquaintance who she
would like to get to know. Whatever the factors involved in
the decision, the nature of the calculation is the same as
purchasing apples: if the host would perceive herself as
better off with Gus at dinner, then he will be invited.
Value is subjective. People make decisions that may be
rational or not. Market transactions do not depend on
rationality, but on decisions made for subjective, personal
reasons. Only the buyer is in a position to know how much
he values apples. External forces, such as advertising,
social norms and family traditions, may influence how
people come to their own measure of value, but no one
except the individual is in a position to decide what that
value is.
In some situations, no concrete benefits are apparent: doing
a favour for a friend, donating blood, helping someone onto
the bus. These actions are sometimes called altruistic.
3 – Ecosystems and Markets
25
“Altruism” is a label applied to decisions that are taken for
reasons other than personal benefit, where there is no
apparent return for benevolence. However, even altruistic
actions are subject to this same exchange calculation. An
altruistic deed occurs when the doer believes that the act is
worth doing. If he considers it inherently valuable without
concrete benefit in return, then he does it because it makes
him feel good, because he believes it to be morally
appropriate, or for any reason at all. All voluntary action
complies with this dynamic.
B. Ecosystems and Markets
Markets share the logic of ecosystems. In ecosystems,
competition for scarce resources leads to natural selection,
in which those organisms better adapted to ecosystem
conditions survive and reproduce, leading to evolutionary
change. In markets, competition for scarce resources leads
to commercial success for those enterprises that adapt to
economic and social conditions, and failure for those that
do not. In both, the dynamics of the system arise from the
interactions amongst a multitude of individual actions,
decisions and adaptations. Below is a list of characteristics
and principles that drive the logic of competitive selection
in both ecosystems and markets.
(1) Scarcity
In ecosystems and markets, resources are scarce. 57 Scarcity
is the state in which the supply of a resource is insufficient
to meet all the demand for it. 58 For example, in an
ecosystem, the population of organisms is limited by
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Ecolawgic
availability of food. Scarcity does not mean that the supply
of food is inadequate. Instead, it means that the supply of
food limits the population to what it is at any given moment
in time. In a market, purchasers seek to avoid scarcity by
obtaining resources that they desire, and sellers seek to
respond to scarcity, meeting demand at the highest possible
price. Scarcity drives the dynamics of supply and demand
in both ecosystems and markets.
(2) Supply and demand
In a sense, a market is the relationship between supply and
demand:
What economists call the law of supply states
merely that, all other things being equal, as the
price of something rises, suppliers will supply
more of it. The law of demand is similar but
reversed: as the price rises, consumers will
demand less. All markets do – all they do – is
establish a balance between these two opposing
tendencies. 59
The relationship between supply and demand determines
how much of a good will be produced, how much will be
sold, and at what price.
In ecosystems, the relationship between supply and demand
(or between availability and need, to use non-economic
terms) creates the conditions for competition and
adaptation of individual organisms and for the evolution of
species. When seeds are plentiful and the demand from
birds is modest (meaning that the demand is within the
3 – Ecosystems and Markets
27
supply), competition for seeds is minimal. Consequently
the population of seed-eating birds grows. The situation is
reversed when the demand for seeds outstrips the supply,
resulting in acute competition for seeds, and downward
pressure on population unless species adapt to other foods.
(3) Autonomous individuals
An ecosystem’s relationships and patterns result from the
actions of individual organisms seeking to survive. The
central role of individuals does not deny the existence of
communities, whether social or organic, but community
arises from the aggregate behaviour of individuals.
Without the actions of individual organisms in hunting,
fleeing, reproducing, cooperating, fighting, and so on,
ecosystems do not exist. In markets, supply and demand are
aggregate phenomena borne of individual action. 60 Sellers
and buyers make their own self-interested choices about
what to sell and buy, and at what price. A market expresses
collective conclusions without collective decision-making.
This is Adam Smith’s invisible hand in operation. 61
(4) Pursuit of self-interest
Each of the autonomous individuals within markets and
ecosystems is engaged in the pursuit of self-interest, which
produces both competition and cooperation with other
individuals. In markets, genuine competition means that no
single enterprise can control supply, demand or price. It
requires many buyers and sellers for each good and service,
access to accurate information, low transaction costs, low
barriers to entry, and the absence of government
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Ecolawgic
subsidization, which falsifies costs and prices. 62
Concentration of market power interferes with competition
because each transaction does not reflect a negotiated
bargain but the resolve of the party with power to dictate
price, for example, by restricting supply. The information
provided by such transactions is false 63 because it does not
reflect the relationship between supply, demand and price
that would exist if many buyers and sellers operated in the
market for that good or service.
As in markets, ecosystem competition is skewed by
monopolistic forces 64 because they render false
information. Success no longer depends on competition and
adaptation, but on system dominance, which allows the
monopolist to determine outcomes. Only human beings
have been able to monopolize ecosystems.
(5) Survival of the fittest: Adaptation, specialization,
efficiency
Competition between autonomous individuals for scarce
resources leads to adaptation 65 through behavioural and
genetic evolution in ecosystems, and technological and
commercial innovation within markets. 66 As Michael
Rothschild explains:
In both ecosystem and economy, survival
rewards efficiency. Inefficiency is punished by
extinction. Attempting to escape scarcity,
species as well as industries fragment into ever
more-specialized offshoots. By adapting to the
peculiarities of their niches, ecologic and
economic life forms become more efficient at
3 – Ecosystems and Markets
29
making offspring and products. Lacking any
grand design other than the urge to escape
threats to their continued existence, genes and
technology spontaneously weave living webs of
ever more-intricate filigree. The future details
of these stunningly complex systems are
unknowable, but their basic architecture and
historical direction are quite clear and similar. 67
Sometimes adaptations follow a gradual pattern of
progression from an existing state. In a market, an
enterprise may expand a product line or pursue sales in a
new territory. However, imminent failure can require
radical adaptation. 68 An enterprise producing canoes at a
greater cost than their market price faces collapse unless it
takes the road less travelled and develops a new product
line – kayaks perhaps. But if kayaks do not bring profits
either, the business may be forced to develop unrelated
products or services, utilize new skills, adopt other modes
of production, hire different employees, or move to other
locations.
In ecosystems, evolutionary adaptations can produce
radically new structures or survival strategies. Jacobs
describes two examples of developments that fit into this
category: 69 the emergence of multi-celled organisms from a
population of single celled creatures, and much later, the
emergence of air-breathing vertebrates from an ancestry of
marine vertebrates. Such adaptations arise spontaneously as
a survival response to system conditions.
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Ecolawgic
(6) Diversification and resilience
Competition leads to increased efficiency and
specialization for individual organisms and enterprises,
which in turn increase diversity and resilience in the
system. Diversity is a measure of variety. In each
ecosystem, there is a diversity of species, genes, nutrients,
habitat, and more. 70 Resilience is a measure of a system’s
ability to maintain its relationships in the face of
disturbances. 71 Diversity generally enhances resilience
because it makes the system less susceptible to disruption
or failure of one or more of its elements. In an ecosystem,
the decline of a dominant species because of a sudden or
catastrophic event could significantly alter the nature of the
ecosystem unless the decline is mitigated by the presence
of others occupying the same or similar niches. A market
contains a particular diversity of skills, services, goods,
capital, modes of production and transportation. In a
diverse market, the failure of one mode of food production
is evolutionary rather than catastrophic if there are other
modes also in operation.
(7) Failure is a normal and necessary event
Competition leads to winners and losers. Failure is as
ordinary as success. Unlike the meaning of failure in social
contexts, failure in ecosystems and markets carries no
moral judgment. It is merely one of the possible outcomes
for individual strategies in a particular system. In
ecosystems, all organisms die, but death does not constitute
failure if it comes after producing offspring who also
survive to reproduce. In markets, not all enterprises die, but
3 – Ecosystems and Markets
31
failure in the form of bankruptcy or other termination is the
appropriate destiny for unsuccessful commercial strategies.
Failure serves at least three essential functions. First, it
produces information for a system’s patterns and feedback
mechanisms. In ecosystems, declining population of prey
fuels positive and negative feedback loops (see (8) below).
In markets, excess inventory directs future resource
allocation and production.
Second, failure provides food and/or raw materials for
organisms and enterprises that are still alive. 72 Rotting logs
provide habitats for animals and insects, and the useless
assets of bankrupt corporations become useful assets of
new entrepreneurs.
Third, failure opens up opportunities and niches to be filled
by other organisms and entrepreneurs. Economies, like
nature, abhor vacuums. 73 Each vacancy created by the
demise of an organism or an enterprise is an opportunity to
be taken up by better-adapted competitors.
(8) Dynamic stability and self-correcting mechanisms
Dynamic stability means active avoidance of collapse. 74
While failures of organisms and enterprises are necessary
events, failure of the system itself is not. Operating within
these systems are at least two kinds of mechanisms or
responses that act to avoid or minimize instability and
collapse, and to enable adaptation to new conditions:
positive and negative feedback.
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Ecolawgic
Positive feedback is “the enhancement or amplification of
an effect by its own influence on the process that gives rise
to it.” 75 In ecosystems, for example, positive feedback
loops exist where there is growth; they are the mechanisms
that produce biomass expansion. Plants transform the sun’s
energy through photosynthesis into matter consumed by
plant-eating animals, which help to fertilize the soil, which
feeds increased plant growth, which produces more
available food for herbivores, which leads to more
fertilization. In markets, positive feedback is a common
phenomenon reflecting the basic principle that economic
activity begets more economic activity. An enterprise
imports raw materials, combines them with labour and
technology to produce exports, pays its labourers and
suppliers who purchase goods and services, including
imports, from other suppliers, and purchases more imports
with profits from its exports with which it makes more
exports and so on. 76 Positive feedback can be conceived as
a self-fuelling process. 77
Negative feedback is the reverse: “the diminution or
counteraction of an effect by its own influence on the
process giving rise to it.” 78 In ecosystems, the relationship
between predator and prey often acts as a negative
feedback loop. The more wolves there are, the more rabbits
that are eaten; the more rabbits that are eaten, the harder it
is to find rabbits; the fewer rabbits there are, the fewer
wolves who can survive; the fewer wolves there are, the
fewer predators looking for rabbits; the fewer rabbits that
are eaten, the more rabbits there are to reproduce; and so
on. In markets, the supply/demand relationship provides
negative feedback to limit incorrect allocation of resources.
3 – Ecosystems and Markets
33
If too many enterprises produce more apples than there are
customers who wish to buy them, price will decline,
eventually to a level lower than apples cost to produce.
Some enterprises will either stop producing apples and shift
to something else, or go out of business. As the number of
producers falls, the supply of apples in the market
decreases. As supply decreases, the price rises. And so on.
(9) Non-linear systems in non-equilibrium
It was once thought that ecosystems developed into a state
of equilibrium, or steady state. 79 They were believed to
evolve from early or primitive states into fully developed or
climax states, a process called succession. Within such a
paradigm, a climax system was thought to exist in a state of
equilibrium where it remained unless disturbed by external
forces. Homeostatic mechanisms within the system
maintained system elements and relationships. The system
was not considered to be static – for example, it was
understood that populations of organisms could swing from
low to high in accordance with the seasons and the
system’s other cycles – but its equilibrium levels remained
constant over time and the system’s patterns did not
change. 80
Equilibrium theory no longer governs ecological thinking.
Instead, ecosystems are thought to exist in a state of nonequilibrium. 81 They do not reach a climax state. Instead,
they continue to evolve and change. Just as there is no end
product in the process of animal evolution because the most
recent species continue to be subject to evolutionary forces,
ecosystems continue to change through time even when
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Ecolawgic
free from human influence. 82 The replacement of the idea
of equilibrium with non-equilibrium as the governing
principle for the behavior of ecosystems is significant
because it changes the conception of the ecosystem from
stability to fluidity. Ecosystems are not fixed but
dynamic, 83 and can be described as “patches or collections
of conditions that exist for finite periods of time.” 84 For
some systems, the degree of change is rapid. For others, it
may be exceedingly slow.
Ecosystems are dynamic, and although some
may endure, apparently unchanged, for periods
that are long in comparison with the human
lifespan, they must and do change eventually.
Species come and go, climates change, plant
and animal communities adapt to altered
circumstances, and when examined in fine
detail such adaptation and consequent change
can be seen to be taking place constantly. 85
An ecosystem may appear to be in a state of equilibrium 86
when measured over a particular period of time, and may
contain elements that are in equilibrium, at least in the short
or medium term, through the operation of self-correcting
mechanisms described above. Ecosystems do not have firm
boundaries but merge with one another. 87 Smaller systems
are part of larger systems, and it is difficult to speak of one
system as a separate entity from the next. A system in
apparent equilibrium may be an integral part of another that
is exhibiting change.
Markets share these characteristics. Their destinies are not
shaped in a particular moment, but change by virtue of the
3 – Ecosystems and Markets
35
effects of numerous interactions and relationships through
time. They are non-linear and unpredictable. 88 Even if
every single influence within a market or an ecosystem
could be taken into account, their futures would still be
unknown. Everything is connected to everything else, 89 and
it is not possible to isolate one element in order to
understand its behaviour separate from the many other
forces and events to which it is attached.
C. Conclusion: Order without Direction 90
Ecosystems and markets arise spontaneously. They are not
created or invented by human design. They operate
according to their own rules, which cannot be changed by
government decree. Ecosystems and markets may be
interfered with, but the nature of their processes cannot be
altered. These systems are not just collections of things.
They consist of relationships and interactions that express
information and produce outcomes. They are organic and
evolutionary, changing through time. These systems reflect
their own logic. The idea of dictating specific ecological or
economic results is inconsistent with the way they behave.
4
Ecolawgic:
When Law Works as a System
When law works as a system, its features dictate answers
and outcomes in a detached, non-arbitrary manner. 91
Systems treat its participants dispassionately and equally,
subjecting all to the same rules. Systems do not play
favourites.
A. Abstract Rules and Principles
Consider an imaginary place where physical violence is the
norm. People hit each other with sticks. They do it to
intimidate, to settle scores, and to punish those they do not
like. The use of force is widespread. The strong and
powerful use it to their advantage over the small and weak,
who are terrorized and less able to defend themselves.
Imagine that in this place there is no law that prohibits the
use of force. Hitting others with sticks is not prohibited.
Finally, there is a proposal to change the law. This
suggestion is met with agreement from some, but with
much resistance from others, for predictable reasons: (1)
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Ecolawgic
strong people are empowered by the use of force; (2)
changing the law would mark a departure from the way
people are used to having things; and (3) saying that change
is necessary amounts to criticism of a way of life and those
who feel a secure place in it.
Imagine the efforts that might be taken against the creation
of an effective law prohibiting the use of force. Violent
means might be used to resist, of course, but consider this
question in the legislative sense. There are at least two
strategies that those opposed to change could adopt to
frustrate the effectiveness of a new rule against violence.
The first would be to try to make the new rule vague and
contextual. They might say that any rule against the use of
force should not be absolute, but flexible. Prohibit force
yes, but do it in a way that does not offend community
values and takes context into account. They might propose
the following rule:
No one may use force against another unless
the situation makes it acceptable.
Or alternatively:
No one may use force against another if the
nature or extent of the beating offends the
sensibilities of the community.
These rules allow the use of force to continue. That is
because their prohibition is based upon community
standards, or in other words, upon what people generally
4 – Ecolawgic: When Law Works as a System
39
do. At the time the new law is developed, what people
generally do is beat each other with sticks.
The second approach that those resistant to change might
take is to attempt to make the new law specific and
complicated. Instead of a generally applicable rule that
prohibits the use of force, they might propose an extensive
list of particular rules for particular situations, such as:
1. No one is to beat another with a stick in
the parking lot of an arena after a hockey
game.
2. No one is to use a stick with force in order
to get a better place in a cashier’s line.
3. No one is to beat a sibling with a stick on
the sibling’s birthday.
And so on. The result of a long list of particular instances
where the use of force is prohibited is to permit the use of
force in all other circumstances. It is acceptable to beat
others after a baseball game. One may use force to get a
better seat on the bus. You can take a stick to your brother
if it is not his birthday.
Either of these alternatives - the vague rule based on social
acceptability or the list of specific rules - would
successfully prevent a general prohibition against the use of
force. An abstract rule far more effective at preventing
violence, of course, is:
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Ecolawgic
No one may apply force against another
without the other’s consent.
To this rule might be added carefully defined exceptions
such as provocation, self-defence, and medical necessity.
The rule is effective because it is simultaneously abstract
and concrete. It is sufficiently general to apply to everyone,
everywhere. It describes a right held by all against all. Yet
it is also sufficiently concrete to dictate outcomes. It
contains sufficient content to enable working out disputes
about unwanted physical contact. Occasionally, scenarios
will arise that do not fall cleanly inside or outside the
rule, 92 but for the vast majority of situations, the rule
provides a clear signal about what is legal and what is not.
An abstract legal rule or principle is sufficiently general to
apply to all situations, but sufficiently concrete to direct
outcomes. None of the hypothetical alternatives described
above have these characteristics. They are either so general
as to consist of platitudes, inviting the decision-maker in
each case to exercise an almost unfettered degree of
discretion (such as in the case of the rule that beating shall
be prohibited “unless the situation makes it acceptable”), or
so targeted at specific situations as to not be abstract (such
as in the case of prohibiting force to get a better place in the
cashier’s line, which does not describe a generally
applicable rule).
Abstract rules and principles define the legal space around
each person. They determine the nature of the relationship
between individuals, and between individuals and the state.
Law cannot function as a system without them. It is no
4 – Ecolawgic: When Law Works as a System
41
coincidence that abstract rules and principles have fallen
out of favour with legislatures, government officials, and
even courts in this instrumentalist era.
B. Precedent: Treating Like Cases Alike
Every bird’s meal of insects affects the state of plants and
animals in an ecosystem. Every sale of shoes affects the
state of commerce in a market. When law works as a
system, every court judgment and administrative edict
affects the state of the law within its jurisdiction.
A corollary of the requirement for abstract rules is the
practice of treating like cases alike. When a precedent is
said to be applicable to a set of facts, it is so because the
new case resembles the old one in an abstract way: it is
applicable not because both the old case and the new one
involved pregnant women slipping on icy sidewalks in
front of Walmart stores, but because both involved personal
injury arising from a danger on premises that the occupier
failed to rectify and warn against. Similarly, when a case is
said to be distinguishable, it is different from previous
situations in an abstract respect. If the slip and fall occurred
outside Target instead of Walmart, that is a factual
difference, not an abstract one: it does not affect the
applicability of the abstract rule. But if the sidewalk outside
the store was public property rather than private, a different
factor exists in the new case that did not exist in the old.
Abstract laws are applied generally without distinguishing
between people. Personal characteristics of the parties are
irrelevant. It does not matter if the plaintiff was wearing a
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Ecolawgic
green dress, if she was rich, or if she was abused as a child.
She should win because a commercial enterprise extended a
general invitation to the public to enter onto its premises,
and its failure to take care to keep those premises safe
caused the plaintiff injury. Treating like cases alike means
that the same principles apply to any plaintiff suing any
commercial enterprise in a comparable situation in any
courtroom. The principle is not personal to the parties. The
system does not care about them, but about the consistency
of its outcomes.
Thus, moving between concrete and abstract is an inherent
part of following precedent. The role of abstraction is
broad; it is not limited to interpretation of judicial
decisions. For example, legislatures express their intent in
statutory terms which are abstract to some degree. A rule in
a statute which provides for equal shares of family property
between spouses upon breakdown of a marriage is an
abstraction: it says all people who fall into an abstract
category, even when in different factual situations, will be
subject to the same principle. Regardless of infinitely
variable characteristics (whether relationships are
antagonistic or amiable, two years long or twenty years
long, with or without children who are boys or girls, and so
on), any marriage that comes apart is subject to the same
general rule. Adjudication is still often necessary and
evidence frequently contentious, but dispassionate general
rules govern the dispute.
4 – Ecolawgic: When Law Works as a System
43
C. Equal Application of the Law
Everyone is different. Therefore, the law must be the same
for all. If the law varied to fit each individual circumstance,
then a rule of law would not be possible. Requiring equal
application of the law reduces the discretion of judges and
bureaucrats, and protects against an arbitrary rule of
persons.
Equal application of the law is equivalent to legal
reciprocity. Reciprocity provides confidence in the law’s
objectivity, meaning that the law will be enforced against
your enemies in the same neutral manner as it is enforced
against you. That confidence gives people reason not to
seek violent retribution for wrongs committed against them,
but to resort to the law for compensation and punishment of
wrongdoers. If your enemies are entitled to injure you with
impunity, then you are more likely to take retribution into
your own hands.
D. Separation of Powers
In a competitive market, no single player can determine
price, supply or demand. In a dispassionate legal system, no
single official can determine a legal answer. The diversity
of functions between different branches of government, the
separation of powers between those functions, and the
doctrine of precedent prevent any state actor from alone
deciding what shall be done about any particular problem.
Separation of powers means that no single person or
authority has the ability to determine the resolution of a
conflict.
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Ecolawgic
It is because the lawgiver does not know the
particular cases to which his rules will apply,
and it is because the judge who applies them
has no choice in drawing the conclusions that
follow from the existing body of rules and the
particular facts of the case, that it can be said
that laws and not men rule. 93
When law is a system, the powers of any single official are
extremely limited. Legislatures pass statutes that contain
abstract rules and principles, but must rely on
administrative officials for implementation and on courts
for application to particular cases. Administrative officials
implement statutory directives, but only by the means of
the rules and principles that the statutes contain. Courts
decide particular cases, but only those particular cases
brought to them by the executive branch or private parties,
and only in accordance with the rules and principles passed
by the legislature and/or the rules and principles articulated
by previous courts. Thus, every prosecution involves a
statutory prohibition (enacted by the legislative branch), an
investigation and prosecution (performed by the executive
branch) and a hearing (conducted by the judicial branch).
Every civil action involves either a statutory cause of action
(legislative) or common law cause of action (from the
decisions of many previous courts) and a hearing (by the
court seized with the case).
This diversity of functions provides resilience and stability.
Built-in self-regulating mechanisms operate: the appeal
process, judicial review of administrative action, and the
ability of legislatures to pass amendments to general rules
4 – Ecolawgic: When Law Works as a System
45
in response to results reached by courts in particular cases.
Like markets and ecosystems, law is evolutionary. It can
and does change, but when operating as a system, it
changes in a coherent and internally consistent manner.
Today, separation of powers is not robust. Courts legislate
within their judgments. Supervision of the executive branch
by elected representatives has significantly declined.
Modern statutes grant wide discretion to officials with
minimal direction and little oversight. Those officials craft
regulation and public policy to reflect their political
priorities.
What was once generally justified only in time
of war or other emergencies has become
increasingly common: the enactment of
legislation with very little opportunity for
parliamentary debate and with both the
principles and the detail left initially for the
executive to work out and also subject to
change at the executive’s whim. 94
E. Articulate Consistency
Ronald Dworkin writes:
[The doctrine of political responsibility] states,
in its most general form, that political officials
must make only such political decisions as they
can justify within a political theory that also
justifies the other decisions they propose to
make. The doctrine seems innocuous in this
general form; but it does, even in this form,
condemn a style of political administration that
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Ecolawgic
might be called, following Rawls, intuitionistic.
It condemns the practice of making decisions
that seem right in isolation, but cannot be
brought within some comprehensive theory of
general principles and policies that is consistent
with other decisions also thought right...This
doctrine demands, we might say, articulate
consistency. 95
Articulate consistency requires that laws address all
problems at the same time. They should not carve out
specific problems to solve, or specific groups of people to
regulate. Down that path lies legal instrumentalism, where
laws seek outcomes. Abstract rules express basic
propositions about the relationship between people, and
between people and the state. Those principles should
apply consistently from issue to issue. In a system,
everything is related to everything else. Consistency means
matters are decided by common criteria. It means that there
are generally applicable, abstract rules.
Consistency is required because the alternative is
arbitrariness. Articulation of the reasons for a decision is
necessary because reasons provide transparency – the
means by which to see that the decision is, in fact,
consistent with the abstract rules and principles in operation
within the system.
When law operates as a system, legal disputes consist of
contests between legal rights – rights of self-interested
parties competing for the coercive help of the state – and
the resolution of these complaints is based upon principle,
not policy.
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47
Arguments of principle attempt to justify a
political decision that benefits some person or
group by showing that the person or group has
a right to the benefit. Arguments of policy
attempt to justify a decision by showing that, in
spite of the fact that those who are benefitted do
not have a right to the benefit, providing the
benefit will advance a collective goal of the
political community. 96
When legal outcomes are based upon rights, there is no
room for the pursuit of policy preferences, individualized
justice or personal moral preference, which Dworkin rejects
as incompatible 97 with the systemic nature of legal
reasoning:
Law is also different from justice. Justice is a
matter of the correct or best theory of moral and
political rights, and anyone’s conception of
justice is his theory, imposed by his own
personal convictions, of what these rights
actually are. Law is a matter of which
supposed rights supply a justification for using
or withholding the collective force of the state
because they are included in or implied by
actual political decisions of the past. 98
F. Rights
In a tabula rasa legal world where there are no rights or
rules, all people can do anything they like. The first
operational principle of law reflects this hypothetical state
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Ecolawgic
of anarchy: all people are at liberty to do as they wish
unless there is a rule that says they cannot.
Laws modify this state of affairs only according to their
terms. A rule against murder prohibits no actions other than
murder. Liability for defamation limits speech only to the
extent that the speech defames. Today there are so many
rules about so many things that the first operational
principle is easily lost in the noise. Nevertheless, it
establishes the basic legal order of operations: to determine
the state of the law, one starts with liberty and then
investigates whether there are restrictions that apply to the
particular case. Laws are based upon prohibitions rather
than permissions.
Sometimes legal rights are seen to carve out the legal space
to do certain things: the right to free speech provides the
space to speak; the right to property enables the owner to
use and abuse land. This reasoning is incorrect. Rights,
literally conceived, do not enable the holder but limit the
actions of everyone else. In the absence of a regime of
rights or other legal restrictions, anybody can do anything
they like. 99 Negative legal rights do not entitle the holder to
act, but to restrict others from acting in a manner that
breaches the right. They provide the ability to limit the civil
liberties of others. 100 Negative rights do provide legal
space, but they do so by virtue of the universal restrictions
they impose upon the rest of the world. The right to free
speech, rather than creating the right to speak, provides the
holder of the right with the ability to prevent government
censorship. Property rights do not create the right to walk
across land. In a state of nature, all people can walk
4 – Ecolawgic: When Law Works as a System
49
wherever they want. Possession of land does not give the
right to occupy, but the right to exclude others from that
space, making occupancy exclusive.
Thus, the frequent claim that property rights facilitate
environmental harm and the destruction of resources is not
accurate. The argument is thus: since the owner of land on
which bees live can destroy their habitat, his property rights
must be the source of the ability to do so. 101 The owner
may indeed be able to wipe out the bees, but that ability is
not created by the right. 102 It exists because no one else has
a right to stop him. In the absence of property rights,
everybody and anybody can destroy the bees’ habitat.
Property rights held by the owner of the land mean that
only the owner can destroy the habitat. Rights do not
facilitate or enable the use, consumption or destruction of
ecosystem processes. Sometimes they protect against it.
The environmentalist criticism of rights, therefore, should
not be that they facilitate the destruction of ecological
resources, but that they do not always prevent it.
Rights are not absolute, but limited by the rights of others.
The ability to swing a fist is limited by the rights of others
not to be hit in the face. The freedom of expression allows
the distribution of unpopular opinions, but not the right to
defame. Even the right to life yields if you attack someone
with lethal force and the victim kills you in self-defence.
But to say that rights are limited by the rights of others is
quite a different thing from saying that they should be
subject to public interest or the greater good. Imagine, for
example, that five people in your neighbourhood urgently
need organ transplants. Without them they may die. Just
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Ecolawgic
one healthy body would supply all the necessary parts:
heart, lungs, liver, and two kidneys. They nominate you to
be their donor. Fortunately for you, your right to life is not
dependent upon an assessment of costs and benefits, and no
official is empowered to sacrifice you for the greater good.
Your life will be spared not because it is more valuable
than the five you would save, but because you have a right
not to be killed. If the right to life were to yield when other
people needed organs, it could not be said to really exist at
all.
G. Conclusion
There is nothing new or remarkable about the features
profiled in this chapter. Some have featured in descriptions
of the rule of law for many years. The remarkable thing is
the increasingly minor role they play in modern legal
systems. They get in the way when legislators, officials and
courts seek to solve specific problems by specific means.
Brian Tamanaha explains that the rule of law and legal
instrumentalism constitute an awkward dualism in the
American legal system.
The legal tradition in the United States
combines two core ideas. The first idea, known
broadly as the “rule of law,” is that government
officials and citizens are obligated to abide by a
regime of legal rules that govern their conduct.
The second idea, what I call legal
instrumentalism, is that law is a means to an
end or an instrument for the social good. Both
ideas are taken for granted and are equally
fundamental in contemporary U.S. legal
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51
culture. It is seldom recognized that the
combination of these two ideas is a unique
historical development of relatively recent
provenance and that, in certain crucial respects,
they are a mismatched pair. 103
The clash between them is irreconcilable. Instrumentalism
treats each problem and each case as a peculiarity that
requires a unique solution. It prevents law from operating
as a system – dispassionate, impersonal, objective, and
consistent. The rule of law protects people from legal
idiosyncrasy by limiting state discretion. When law reflects
the logic of systems, no one authority is able to control its
outcomes.
5
Ecolawgic:
The Right to Autonomy
in Ecosystems and Markets
The immutability of ecosystems and markets does not mean
that there cannot or should not be laws that apply to them.
Calling these systems “immutable” does not mean that they
are impervious to external forces, but only that their
internal principles are independent of state regulation,
moral argument or personal preference. Their protection is
not a mandate to be performed in the public interest. It is
not because someone has deemed them to be socially
valuable that the law should provide for their operation.
The existence of these systems is inevitable. Ecosystems
exist wherever there is life; markets exist wherever people
interact. These systems have no independent interests or
objectives. Their operation can be distorted but their logic
cannot be replaced. 104 They follow their own rules because
they can do nothing else. People live within them, because
they cannot do otherwise. Ecosystems and markets cannot
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Ecolawgic
be manipulated or changed to behave differently, and
efforts to do so are misguided.
A. Systems and Individuals
Autonomous behaviour is the main ingredient of markets
and ecosystems. Interactions, survival strategies, successes
and failures are the stuff of which these systems are made.
When people participate in markets, they are buyers and
sellers whose interactions determine supply, demand and
price. When people participate in ecosystems (which is
always), they are organisms whose interactions with each
other and their surroundings help to determine ecosystem
conditions.
Each interaction is insignificant on its own, but plays a role
in system dynamics. Jeremy purchases a pair of leather
dress shoes for $75. His purchase does not establish the
going price for shoes nor their supply or demand, but
contributes to these questions. When a pack of wolves takes
down a deer, the event does not fix the relative populations
of wolves or deer, the supply of food for predators in the
forest, or any of the other relationships to which wolves
and deer are attached, but it is relevant to all these matters.
Each interaction is like a vote in an election. Any one vote
is inconsequential, but the aggregate pattern of votes
determines the outcome. The election depends upon the
independent preferences of each voter, but none of them is
in a position to dictate the collective answer that individual
inputs together produce.
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55
Competition is a neutral, impersonal dynamic which arises
from the autonomous pursuit of self-interest in an
environment of scarcity, driving selection and adaptation.
Competition protects everybody because it prevents
anybody from taking control. 105 In a competitive market,
no one’s personal judgment can prevail because no one is
in a position to enforce that judgment across the market. It
precludes anyone from fixing prices, limiting supply,
restricting employment, or directing how things are going
to go. In ecosystems, even organisms at the top of the food
chain control neither the actions of other organisms nor
system outcomes. The dynamics of competitive selection
and adaptation proceed relentlessly. They produce
collective results without collective decision-making: order
without direction. When governments or other agencies
direct outcomes in ecosystems or markets, they interfere
with the dynamics of competitive selection. Interfering with
the actions of individuals constitutes interference with the
system itself, and vice versa.
B. The Right to Autonomy
The right to personal autonomy has a long and rich history
in common law jurisdictions. Self-ownership is the
conceptual foundation of negative legal rights that are
found at the core of the common law system. Many
existing common law causes of action reflect the principle
of autonomy and self-ownership, including tort causes of
action in battery, false imprisonment, trespass, nuisance
and negligence; the rules of contract; rights of due process
in criminal law; and so on.
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Ecolawgic
In its crudest and simplest form, the irreducible
core of [the law of tort] can be succinctly
expressed: “keep off”. This two-word rule
accurately describes the historical and
intellectual thrust of much of the common law:
to prevent trespass to land, larceny, murder,
rape, and (by extension) infringement of patents
– and indeed interference with the exchange
relationships between parties. It is amazing
how much, even in this age of heightened
sensitivity to sexual harassment, you can learn
about interactions between strangers by
remembering to keep your hands to yourself. …
This rule allows people to use, and use
productively, the things they own without your
being able to impose your will on them. And
you will have the same freedom relative to
them. 106
A property right is the ability to restrict the civil liberties of
others with respect to a thing or parcel of land. 107 Private
property rights are a corollary of individual autonomy and
an extension of self-ownership: the product of your own
labour must also be yours. 108
Though the earth and all inferior creatures be
common to all Men, yet every man has a
property in his own person. This nobody has
any right to but himself. The labour of his
body, and the work of his hands, we may say,
are properly his. 109
The pivotal question is the meaning of interference: where
is the line to be drawn between innocent actions and those
that attract liability? In the context of an individual’s role as
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57
a participant in ecosystems and markets, what does the
right to autonomy mean?
C. The Right to Autonomy in Ecosystems
Harold lives on 200 hectares of land in the countryside. On
Harold’s land lives a population of wild bees. Harold plans
to graze cattle on the land, which will require clearing
woodlots on which the bees rely for food and nesting.
Gretchen grows a fruit orchard nearby. She objects to
Harold’s plan to clear the land and thereby threaten the
viability of the bee population, which helps to pollinate
Gretchen’s fruit trees. If Harold clears the land and harms
the bees, does he interfere with Gretchen? Or, if Gretchen
prevents the land from being cleared, does she interfere
with Harold?
Ecosystems cannot be harmed but only changed. If
ecosystems are changed by human action to the detriment
of human wellbeing, then change to ecosystems represents
a conflict between people. The way to resolve conflicts
between people is to determine who has rights to what –
which will indicate who has the ability to restrict the
actions of whom. Negative rights are rights that restrict the
actions of other people, and express the principle of noninterference. If Gretchen has a right to restrict Harold’s
actions, it must be because Harold is interfering with her by
making changes to his own property. She has no property
rights in Harold’s land. The only respect in which Harold’s
actions allegedly interfere with Gretchen is their effect in
changing the ecosystem of which the bees are a part.
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Ecolawgic
Humans, like all animals, cannot survive without impacting
ecosystems. Whenever an organism breathes, eats, or
decomposes, it interacts with other elements of the system
and thus has effects. Such impacts are not detrimental to
the system. Instead, they make the system what it is – they
are the interactions that create relationships among system
elements. Without impacts, the system would not be a
system, but merely a collection of things. If all human
actions in ecosystems are simply part of the activity in
ecosystems, then none of those actions can be said to
constitute interference with others. On what basis could it
be said that wiping out a colony of bees or paving over a
wetland is not merely an interaction, but constitutes
interference with the system itself, and therefore with
individuals who have a right to autonomy?
In a competitive market, each transaction between a buyer
and a seller contributes to the “invisible hand” of the
market that decides the going price. None of the many
buyers and sellers controls enough of the market to be able
to unilaterally decide the price of the commodity. In
contrast, in a market that is not competitive but instead
subject to monopoly or oligopoly power, buyers and sellers
do not exert a comparable degree of influence. The
invisible hand of the market does not operate and supply,
demand and price are not determined by the dynamics of
competitive selection. Instead, a very few players exert a
disproportionate impact on the way the market moves.
So too in ecosystems. Human beings are part of nature
when they are one of many competing species in an
ecosystem – the ecological equivalent of one of the many
5 - Ecolawgic: The Right to Autonomy
59
buyers and sellers in a competitive marketplace. They are
merely elements of the system when they exert impact that
contributes to the interactions in the system and thus
influence the nature of the change that the system
experiences. However, when humans exert monopolistic
influence on the state of a system, like a monopoly in a
marketplace, they dictate outcomes. Their role is unlike that
of any other organism. Under these conditions, the changes
experienced by the system are not guided by the invisible
hand of system interactions, but are wrought by one of its
elements alone. If the state of an ecosystem is determined
by the ecosystem’s mechanisms and dynamics, then the
humans within that ecosystem are merely elements of the
system. If the state of the ecosystem is controlled by
humans, then the humans are ecological monopolists.
Thus, whether humans are simply elements of ecosystems
depends upon their role and the kind of impact they are
causing. The impact caused by some human societies at
some moments in history might qualify as mere
contributions to system dynamics. However, much of the
impact of human civilization at the beginning of the twenty
first century does not. When concrete is poured over a
marsh or a forest is clear-cut, monopoly power is exercised.
Human beings once were merely one species among many,
but now human activity dominates the landscape. Their role
is unlike that of any other organism. Indeed, this is part of
the case for ecosystem management: humans exert such an
overwhelming impact on ecosystems that they no longer
operate as independent systems. Ecosystem management
calls upon humans to act like a monopoly, unilaterally
deciding how ecosystems change. 110
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Ecolawgic
When some human beings exert control over outcomes,
they deny others the competitive ecosystems conditions
that would otherwise have been available. The challenge is
to identify the competitive conditions that would have been
available if not for the monopolistic actions of the human
animal.
Two kinds of change can occur within ecosystems:
temporary and permanent. Temporary change occurs when
equilibrium is not affected; permanent change occurs when
it is. I suggested in Chapter 3 that ecosystems exist in a
state of non-equilibrium, in which they experience an
ongoing process of evolution and change. If ecosystems
exist in a state of non-equilibrium, how can one speak of
equilibrium levels? In spite of the primacy of the nonequilibrium paradigm, equilibrium still plays a significant
role in the way ecosystems function. Non-equilibrium is
not necessarily the opposite of equilibrium. It does not
suggest that equilibrium never appears in nature, but simply
“that it need not appear at all scales or for all
phenomena.” 111 In other words, the non-equilibrium
paradigm acknowledges that many ecosystems exist in a
stable state and contain elements that are in equilibrium, at
least in the short or medium term. Equilibrium is not a
static condition, but a reflection of the operation of
homeostatic mechanisms that maintain the element within a
certain range. The equilibrium level is like the central or
rest position on a pendulum. Its location does not indicate
or determine the height of the oscillations or their
frequency. A population of grasshoppers, for instance, may
5 - Ecolawgic: The Right to Autonomy
61
swing from season to season from low to high, passing
through its equilibrium point.
For an element in equilibrium, such as a population of
insects, temporary change is normal. The population may
be high one year and low the next, as it proceeds through a
cycle. The discovery that there are fewer grasshoppers this
year than in the previous year does not necessarily indicate
that the system’s cycles have altered. The change in
population may be temporary and return to its high level in
its next cycle. On the other hand, some incidents of change
may not be in accordance with the system’s usual state. If
external disturbances cause the population of grasshoppers
to dip below its lowest normal level and homeostatic forces
do not return it to its usual cycle, the equilibrium level of
grasshoppers is altered and the change is permanent.
Change is temporary when an element is still in
equilibrium. Temporary change may be significant to those
who are exposed to it, but there has been no change to the
way the system operates in the long-term or to the longterm relationships between system elements.
There are two causes of permanent change in ecosystems:
competitive interactions amongst system elements and
monopolistic human forces. The first is of no concern,
since it reflects the system’s competitive forces in
operation. The second is not competitive. It consists of
forces from outside the dynamics of the system imposing
outcomes that would not otherwise transpire. This kind of
influence is monopolistic. It reflects a concentration of
system influence, and thus interferes with the autonomy of
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Ecolawgic
individuals who participate in competitive systems.
Monopolizing ecosystems is like rigging elections: the
outcome no longer depends upon the aggregate effects of
individual actions and interactions that produce collective
results without collective decision-making. Instead,
unilateral decisions impose new conditions.
To underline the point, a right to autonomy in ecosystems
does not prohibit human impacts. To do so would mean
that people were not allowed to breathe, eat, grow things,
have children or die. Instead, the right defines when human
impacts amount to inference with other people. Impact is
permissible unless it imposes monopolistic change.
Monopoly is not restrained by competition from other
organisms and species but alone dictates the ecosystem’s
future path.
Impacts are to be assessed, but upon which ecosystems?
They are larger than continents and smaller than tidal pools
or rotting logs. When a person steps in a puddle or burns a
log, those ecosystems are radically changed, and sometimes
eliminated altogether. If such actions were prohibited,
human beings could not function in the world. Fortunately,
preserving conditions in very small ecosystems is not
necessary for the very reason that they form part of larger
ones.
[C]omplex ecosystems are understood to consist
of many intimately interlinked and “nested”
ecosystems. In other words, a large ecosystem,
such as a region of Amazonian rainforest, has
embedded within it smaller systems, such as the
cycles of energy and life operating on a specific
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63
hillside or along a specific portion of riverbank.
In turn, these subsystems incorporate ever
smaller sub-subsystems, all the way down to soil
bacteria. Nested systems thus contain everything
from sweeping macrosystems to minutest
microsystems… 112
Imagine that someone walks along the seashore, stepping
into tidal pools, spilling out their contents, and occasionally
obliterating them altogether. Does this action produce
permanent change caused by human beings? If the
ecosystem in question is the tidal pool, the answer may be
“yes” (although such systems may be rapidly formed and
destroyed independently as well, facing transformation
every time a large wave pounds the shoreline). But say the
ecosystem in question is a larger one – the marine system
along the shoreline, for example. It may include thousands
or millions of mini-system pools and puddles that are being
regularly created and destroyed. This process is part of the
way this system works. In the context of the marine system,
do the actions of human beings stepping into puddles cause
permanent change? The answer is “no”.
Therefore, the test for measuring monopolistic interference
with ecosystems is not whether permanent change has been
caused to any ecosystem, but whether it has been caused to
every ecosystem within which the effect takes place. If
there is change within a small system but there is a larger
encompassing ecosystem that has not experienced
permanent change, then no ecological interference has
occurred. The small system may have experienced
pronounced change, but the encompassing system may
have experienced no permanent change at all. For example,
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Ecolawgic
consider the effects of removing a tree from a forest and
burning it. The system of organisms that existed within the
tree is permanently destroyed. However, from the
perspective of the forest, nothing of any consequence has
happened. Strictly speaking, there is one less tree. But trees
in forests die regularly, there will be new growth, and the
overall number of trees in the forest will remain within its
normal range. When the forest is the ecosystem under
consideration, no permanent change can be detected.
Consider ecosystems of various sizes, each system
embedded within the next larger one. Ecosystem 1 is a
small system contained within system 2, which in turn
exists within system 3, and so on. (Note that the dimensions
of an ecosystem are not determined by abrupt boundaries as
the description suggests.) If the cumulative effects of
human activity upon ecosystem 1 (a tree or a tidal pool) is
to cause permanent change within system 1, but permanent
change is not caused by the total load of human activity in
system 2 (including but not limited to the human impact in
system 1), then ecological damage has not occurred.
Similarly, if permanent change caused by human action is
found in system 2, but not by the total load of human action
in system 3 (including but not limited to the action in
system 2), then ecological damage has not occurred. And
so on.
Therefore, the right to autonomy in ecosystems does not
create a general prohibition against permanent monopolistic
change in every ecosystem. Instead, if it is possible to
identify any ecosystem (even a large one - indeed, even the
largest one, the biosphere on the surface of the planet) that
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65
will experience no permanent change as a result of the
cumulative effects of human activity that takes place within
it, then no permanent ecosystem interference has occurred.
Approaching the issue in this manner does not mean that
there would be open season on very small ecosystems.113
On the contrary, such a prohibition would mean that any
effect on small ecosystems that contributed to permanent
change to a larger ecosystem would be prohibited. Recall
that the test is whether the cumulative effects of all human
action within the system cause permanent change. The
larger the system in question, the wider the net for the
human impacts that must be incorporated into the
calculation. A right to be free from permanent ecosystem
change caused by monopolistic human impact means that
no one may produce environmental impact that, alone or in
combination with impacts from other people in the system,
would cause a permanent ecosystem change, unless a larger
encompassing ecosystem can be identified in which no
permanent change would be found.
Enforcement of this right is not conceptually difficult when
the defendant alone causes acute and identifiable
permanent change. For example, someone who lives in a
cabin in the woods could object to a defendant’s plan to
clear-cut the forest. Things become more complex when
the defendant is but one of the human forces contributing to
permanent ecosystem transformation. The defendant may
be running just one of many logging operations that
together will result in the transformation of the forest to
grasslands. In such circumstances, does the defendant
breach the plaintiff’s right to autonomy in the ecosystem?
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Ecolawgic
In tort, where multiple tortfeasors cause loss to the plaintiff,
each defendant is independently liable for the loss
regardless of the contribution of the others. The right to be
free from monopolistic interference is a right to be free
from the effects of interference rather than a right to restrict
the actions of particular people. Effects may be cumulative,
caused by a combination of human activities where each
contributor violates the right.
If a right to autonomy in ecosystems were to be recognized,
would Gretchen be able to prevent Harold from clearing
out the bees? As in any legal case, it depends on whether
the facts of the case meet the test. If the evidence indicates,
for example, that there is an abundance of woodlot space,
the amount to be cleared is inconsequential and the bees
will simply relocate, then the test may not be met. On the
other hand, if the evidence suggests that the bees will not
recover and thus that the local ecosystem will be
permanently changed, then the test may be satisfied unless
Harold is able to identify a larger ecosystem in which no
permanent change results from the cumulative effects of all
the human activity within it, including his own.
Some qualifications are necessary. First, since the legal
right under consideration would be a feature of domestic
law rather than a matter of international law, the
ecosystems in question would necessarily be located within
the jurisdiction that recognized and enforced the right.
Second, the right to autonomy in ecosystems does not take
the place of other negative legal rights that protect other
interests. For example, it does not replace or duplicate
5 - Ecolawgic: The Right to Autonomy
67
causes of action in nuisance, negligence or riparian rights
that offer protection against other kinds of environmental
circumstances. Air emissions containing a high
concentration of toxic materials could conceivably breach a
right of autonomy in ecosystems depending on their effect.
Even if they did not, those same emissions could constitute
a private nuisance if they were to be imposed upon an
occupier of land and caused an unreasonable interference
with the use and enjoyment of that land within the meaning
of that term in the law of nuisance. Finally, the remedies
available for breach of the right to autonomy in ecosystems
should conceivably include an injunction to stop or prevent
the breach, an order for restoration of the effect to the
extent that that is possible, and damages to compensate the
plaintiff for personal losses caused to person, property or
economic interests. If Gretchen succeeded in establishing a
breach but Harold had already done the clearing and
evidence indicated that the woodlot and the bees could not
rehabilitated, then Gretchen could attempt to establish the
value of the detriment to her orchard from the loss of the
bees.
D. The Right to Autonomy in Markets
Autonomy in markets means bargains are free from
interference. Bargains occur when two or more people
decide that an exchange makes them better off. 114
Therefore, government interference with a bargain is
equivalent to denying the parties the autonomy to decide
what is best for them.
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Ecolawgic
Markets do not exist to produce jobs. They are not created
by the state and do not have a utilitarian purpose. Instead,
markets consist of patterns of commercial decisions and
interactions made by a multitude of individual buyers and
sellers. Laws interfere with markets when they stipulate
different rules for particular transactions, or particular kinds
of transactions, or the supply of particular kinds of goods,
or a particular class of traders. They change particular
outcomes rather than general rules about entering into
transactions, and upset the relative competitiveness of the
players by forcing some players to tolerate restrictions or
obligations that their competitors do not have, or creating
advantages that not all competitors enjoy.
Examples abound. A minimum wage law that distinguishes
between waged employees and independent contractors,
making one group subject to the rule and the other not,
distorts the market. Since both groups sell their labour,
such a rule does not treat all transactions for the sale of
labour in the same way. Instead, it shifts the purchase of
labour towards independent contractors and away from
employees. Government subsidies for nuclear electricity
mean that the nuclear industry does not do business under
the same conditions as the suppliers of other forms of
energy. Rules that stipulate that particular goods are to be
sold only by a particular party, such as a marketing board,
virtually eliminate the market by designating a single seller
and thereby creating monopoly. Licensing and quota
systems restrict entry and limit supply, industrial and
agricultural subsidies undercut competing goods, marketing
boards hold exclusive selling rights, and patents create
monopolies over inventions. 115 Some economists maintain
5 - Ecolawgic: The Right to Autonomy
69
that the most significant source of monopoly power is
direct and indirect government assistance in its creation and
maintenance. 116 Regulatory regimes are more likely to
restrict competition than to increase it. 117
Governments also frequently supervise bargains to protect
people from themselves. Protecting people from themselves
attracts three competing rationalizations: moralistic,
communitarian, and paternalistic. Moralistic coercion is
based upon the proposition that the state must supervise the
morality of its citizens because the state understands what
is moral and citizens do not. I argued in Chapter 1 that
imposing morality is an arbitrary enterprise because
objective moral truths cannot be proven. State supervision
of the morality of its citizens enforces a subjective notion
of how they should behave.
Communitarian coercion relies on the rationales that
community virtues are more important than individual
values and that communities are normatively prior to
individuals, who adapt to them and form their ideas
accordingly.
... individuals do not “enter” society at any
time, as if by contract, from outside it. They
are created within healthy societies that serve
both as the enabling and restraining forces of
human character. ... Society, in other words, is
not just some abstraction. It comprises real
concrete relations that are prior in importance
to, and that cannot be derived solely from, the
existence of mere individuals. 118
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Ecolawgic
Therefore, the argument goes, the character of individuals
is dependent upon and shaped by the community from
which they come. They lack free will and selfdetermination.
If this reasoning is correct, then it would apply to everyone
in the community. Therefore, no one in the community
would be equipped to exercise genuinely independent
judgment. Therefore, the officials who would otherwise
prescribe community standards have no capacity to
formulate those standards, since like everyone else, they
have been shaped by existing community mores. The
communitarian argument works only if the masses are
shaped by their community but experts and bureaucrats are
not. Citizens would have no free will to self-determine, but
the experts and bureaucrats would be able to think things
through in the best interests of the community. The
communitarian argument is nothing but a badly disguised
appeal to elitism.
Paternalism, on the other hand, is undisguised elitism. The
proposition is that authorities know better than the
individual what the individual wants and needs – that the
doctor knows better than the patient that the patient’s best
interests are served by not smoking. The doctor cannot
know this to be so because he is not inside the patient’s
head, and the doctor’s conclusion is based upon the
doctor’s values, not the patient’s. Paternalism is based upon
the simple premise that some people know better than
others. It tends to be popular amongst those people who
believe they belong to the first category. Few people
believe in paternalism because they wish to be told what to
5 - Ecolawgic: The Right to Autonomy
71
do. Paternalism is coercion by those who wish to dictate to
others.
Freedom to contract provides the ability to seek personal
utility. In other words, contract is necessary to have the
ability to do what you think is right, according to your own
criteria. Some will seek luxury and pleasure; others will
pursue security, companionship, wealth, danger, suicide,
altruism or an infinite number of other possibilities. All are
equally valuable because they are private decisions, and are
valid as long as they do not infringe the rights of others.
There is only one mind inside each head, and no one else
really knows what goes on in there. That means that people
ultimately decide for themselves what they really think and
want. Autonomy derives not from a “right to be wrong”,
but from the reality that, when it comes to the self-interest
of the individual, no one else has the knowledge,
perspective or authority to define what “wrong” means.
The desire to identify proper choices for others is
widespread. Many professionals fit into this category:
bureaucrats, politicians, town planners, scientists, doctors,
engineers, economists, dieticians and a long list of others
are engaged in the business of deciding what is good for
others. Such people are often excellent sources of advice.
But providing advice is an entirely different proposition
from making decisions on behalf of other people. 119 Both
political extremes are inclined to direct: the socialist left
favours individual choice when the issue is marijuana use,
gay marriage and the expression of words and images of
which they approve, but compulsion when the issue is
union membership, the consumption of trans-fats, and
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Ecolawgic
expression of words and images they find objectionable.
The conservative right favours the same in reverse. For
both, a decision is properly made if the result is proper.
Both profess extraordinary concern for the public interest,
but remarkable disdain for idiosyncratic desires of
individuals who make up the public.
Autonomy means the absence of coercion. It does not mean
that people cannot influence each other. They can tell each
other what they think, and attempt to persuade, cajole and
convince, but that is all.
… the sole end for which mankind are
warranted, individually or collectively, in
interfering with the liberty of action of any of
their number, is self-protection. That is the
only purpose for which power can be rightfully
exercised over any member of a civilized
community, against his will, is to prevent harm
to others. His own good, either physical or
moral, is not a sufficient warrant. He cannot
rightfully be compelled to do or forbear
because it will be better for him to do so,
because it will make him happier, because, in
the opinions of others to do so would be wise,
or even right. These are good reasons for
remonstrating with him, or reasoning with him,
or persuading him, or entreating him, but not
for compelling him, or visiting him with any
evil, in case he do otherwise…. Over himself,
over his own body and mind, the individual is
sovereign. 120
Whenever government protects people from themselves,
they are denied the right to decide for themselves. They
5 - Ecolawgic: The Right to Autonomy
73
cease making autonomous choices, and thereby distort the
operation of the systems in which they play a part.
One of the dangers of an exclusively public health care
system is that it serves as a rationale for controlling
behaviour. If health care costs are public, then
consequences of personal decisions are public burdens.
This dynamic creates the claim that personal decisions are
public decisions and can be legitimately regulated. If one
chooses not to wear a bicycle helmet and suffers
catastrophic head injuries, the burden of those injuries
should belong to the rider. But if a public health care
system must pay the costs of treatment then the state has a
direct financial interest in how people ride their bikes. The
proper question is not whether cycling should be supervised
because health care is public, but whether health care
should be public if it provides a justification to supervise
behaviour.
The right to be provided with a government benefit, good
or service is a “positive right.” Traditionally, in common
law countries, domestic constitutional rights are negative
rights, such as the right to free expression, to be presumed
innocent, and to be free from unreasonable search and
seizure. The essence of negative rights is the right to be left
alone, without intrusions from the state. Governments can
generally comply with negative rights by inaction. Positive
rights, in contrast, consist of entitlements that governments
must actively provide. 121 Positive rights reduce or remove
the economic incentive to produce goods and services.
Legislated ceilings on the price of housing, food or water
mean that producers of those goods make less money than
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Ecolawgic
the market would otherwise return to them. Supply
inevitably decreases. While governments have an unlimited
capacity to provide negative rights, since they require
merely that citizens be left alone, positive rights require
governments to take from some to give to others.122
Negative rights place limits on the state’s ability to
interfere 123 and positive rights do the opposite.124
Therefore, positive rights are inconsistent with selfregulating systems and autonomous individuals.
In markets, competition leads to winners and losers, and
failure is a normal event. Laws that attempt to protect
enterprises from economic death skew the market’s
mechanisms. When economies decline or go into recession,
banks and car manufacturers may go bankrupt.
Unemployment may go up. Stocks and houses may fall in
value. If they do, they should – because market conditions
dictate that outcome. Choices have been made that create
the market conditions for a decline in price and value.
Government intervention that attempts to prevent such
results violates the abstract rule that autonomy and
responsibility travel together. Private decisions do not
create public responsibilities.
E. Conclusion
“Autonomous” means not directed by a coercive state or by
the force of other people. It means the right to be free from
interference in ecosystem or market interactions. That right
is breached when conditions are imposed other than
through the dynamics of competitive markets and
competitive ecosystems. Autonomy includes the right to
5 - Ecolawgic: The Right to Autonomy
75
participate in markets and ecosystems under conditions that
exist independently of monopolistic or non-competitive
forces, whether private or public.
The restrictions imposed by a right to autonomy are not a
reflection of a quest for a nebulous public interest. They
follow from the logic of systems and the role of individuals
within them. Because the right to autonomy is personal and
privately held, each person is at liberty to do as he wishes
with the right: enforce it, bargain it away, or ignore
breaches of the right, as he sees fit, for whatever reason he
deems appropriate.
Autonomy does not mean that people have the resources to
do as they please, or that they are not subject to pressures
or limitations, created by living in the world. People are
free to do their best to solve the challenges of their lives –
financial, physical, psychological, and social – as best they
can given an infinite variety of obstacles and difficulties.125
They make their own decisions and craft their own survival
strategies based on the generally applicable framework that
the law provides, and they are allowed to succeed or fail on
the basis of those strategies. Those actions and decisions
contribute to markets and ecosystems, and their aggregate
effects make those systems what they are.
In ecosystems and markets, there is no notion of common
good, equality of outcome or distributive justice. There is
no requirement to share, except when sharing is a selfinterested adaptation borne of competition for scarce
resources. No one expropriates a squirrel’s nuts for
redistribution. The squirrel loses his nuts only to larger
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Ecolawgic
squirrels who take them by force. The use of state coercion
to redistribute resources opposes system dynamics.
Redistribution depends on the taking of property, and any
transfer that is not voluntary is coercive. Therefore, any
system based upon redistribution is based upon the coercive
use of force by the state. State force exercises control over
system outcomes, something that no single organism can
do in ecosystems, and no single buyer or seller can do in
markets.
Law is about who has power over whom. The most diverse
and liberated society is one in which the least amount of
power is held over the fewest number of people. A
genuinely pluralist society is based upon a system of laws
that provides individual autonomy and rights reciprocity.
Every individual’s decisions count when they decide for
themselves. Those decisions contribute to an impersonal,
detached, neutral system. Everyone decides, so that no one
decides.
6
Not Ecolawgical:
Modern Environmental Law
Modern environmental law is the archetype of
instrumentalist governance. What is “environmental
harm”? What environmental impact is prohibited? What
are the environmental rights of citizens? Environmental law
does not answer these questions. Instead, it is an incoherent
discipline – idiosyncratic and ad-hoc – that overtly rejects
notions of precedent and the application of general rules,
treating each scenario as a unique case that requires the
exercise of broad discretion and administrative problemsolving. There is no well-defined line in the sand that
serves as a central governing proposition. Instead,
environmental law’s core premise is “I can’t define it, but I
know it when I see it. 126
With the exception of civil liability arising in contract or
tort, most environmental law is public law: impact
assessments, regulations, permits, approvals, plans, orders,
reviews, guidelines, expropriations, and other forms of
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Ecolawgic
control and oversight, some more apparent than real. Rulebased regulation still exists on the books, but it has fallen
out of fashion, condemned as ineffective and futile, and it
never really lived up to its name in any event. Generally
applicable, abstract rules are rare in formulation, and
virtually unknown in application. 127
Within the scientific, academic, and activist spheres, there
is distrust towards the use of simple, abstract environmental
rules and of precedent-based decision-making. Unlike
many other areas of law where conflict between
instrumentalism and rule-based adjudication is not
acknowledged, the campaign against general rules in
environmental law has occasionally been explicit. 128 The
nature of environmental problems, goes the argument,
makes generally applicable rules impossible, or at least
impractical. 129 Officials and practitioners of environmental
policy, including scientists, planners and geographers,
typically assert the science is too uncertain, the systems too
different, the information too voluminous, and the human
factors too important to express ideas in general terms. In
order to deal with these difficulties, they say that decisions
must be made on an isolated basis without reference to
binding abstract rules.
A. Ecosystem management
Ecosystem management, or “EM”, has become the
dominant methodology in environmental law. It has risen to
prominence within the past quarter-century, 130 and the
modus operandus of most modern environmental law
regimes in Western nations is some form of management,
6 – Not Ecolawgical: Modern Environmental Law
79
either explicitly131 or in practice. EM is an instrumentalist
practice that overtly rejects systemic legal ideas such as
precedent and the application of general rules. Instead, it
claims to address each new environmental situation as a
unique case. 132
The need for EM is so well established as to be considered
self-evident. It is an ideal process for massaging the clash
between commercial and social needs of growing
communities and the political imperative of being green.
EM’s legitimacy is difficult to challenge, in part because
the term creates the perception of an either/or choice: 133 the
only alternative to ecosystem management must be
ecosystem mismanagement. But that is not correct.
Should ecosystems be managed to achieve desirable ends?
To the managers, such debate would serve no purpose.
They presume that humans should manage ecosystems
because nothing else is possible. Human change to
ecosystems is now inevitable, they say, and the only
choices available are whether ecosystems are changed
deliberately, producing the most desirable result in social,
cultural, economic and environmental terms; or
inadvertently, producing an environmental disaster.
Ecologist and EM advocate Daniel Botkin states this case:
Having altered nature with our technology, we
must depend on technology to see us through to
solutions. The task before us is to understand
the biological world to the point that we can
learn how to live within the discordant
harmonies of our biological surroundings, so
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Ecolawgic
that they function not only to promote the
continuation of life but also to benefit
ourselves:
our
aesthetics,
morality,
philosophies, and material needs…. Nature in
the twenty-first century will be a nature that we
make; the question is the degree to which this
molding will be intentional or unintentional,
desirable or undesirable. 134
(1) Objectives
The term “ecosystem management” implies systemsfriendly governance. It sounds like it is designed to
preserve and protect the natural operation of ecosystems.135
It is not. EM is antithetical to the systemic operation of law
in both form and substance. It embodies discretionary
decision-making in the absence of abstract rules or general
standards. Decision-makers have broad discretion to weigh
conflicting priorities one situation at a time. The
methodology of EM allows ecosystems to be controlled,
used, planned and changed to suit human preferences.
Sometimes the preferences it reflects are consistent with
preserving native ecosystem functions, but more often they
are not. EM is a process, not a substantive set of directives.
To manage is to control from a central authority in order to
achieve situation-specific social outcomes. The purpose of
ecosystem management is to measure, control and change
ecosystems to produce the most desirable environment in
human terms.
Many advocates of EM value ecosystem integrity, but they
are not in a position to control the outcomes of
6 – Not Ecolawgical: Modern Environmental Law
81
discretionary and therefore ultimately political decisionmaking. They cannot prevent the process from being
influenced by interests—local, industrial, professional or
political—that do not share their ideas of what a proper
outcome should be. EM accommodates the pressing
expectations of civilized society by minimizing its impacts
upon ecological processes, and fashions an environment
that reflects community aspirations. This utilitarian
perspective may not reflect a universal conception of EM’s
purpose, but there is no binding consensus. The goals to be
pursued vary from case to case.
(2) EM is not complex-adaptive problem solving
EM claims to be a complex-adaptive problem solving
technique, but it is not. It does have features that resemble a
complex adaptive approach; in particular, it is a dynamic
process that consists of a continual series of actions and
measurements that adjusts solutions to changing conditions.
In these respects, it is unlike decisions made by courts that
declare rights and responsibilities at a particular moment in
time that thereafter cannot be revisited. 136 Managers who
carry out EM may perceive that they are engaged in
complex-adaptive problem solving. However, in legal
terms, EM is not a complex-adaptive process. If it was,
people would have the autonomy to work out local
solutions to local problems, using local knowledge and
experience rather than being dependent upon the expertise
of distant elites. Complex-adaptive governance is
decentralized, particularized, and diverse. It embraces
systems that are resilient—ecological and human—because
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Ecolawgic
of the autonomy of their constituent parts to seek out their
own interests and survival.
EM does not have these characteristics. Instead, it is a
conventional decision-making system that pretends to be
enlightened. It is authoritarian, expert-driven, and
controlled by the state. It tells people what to do. EM is
merely another form of central planning, in which scientific
and government elites dictate the environmental steps that
are to be taken. It relies on technocratic, expert, explicit
knowledge; concentrates power in policy elites located at
the top of the social structure; and is organized around the
goal of utility optimization. 137 It consists of an authority
giving orders—and not even in a manner in which the
authority can be held to democratic account or legal appeal.
Trained specialists have carte blanche to express the
single-minded inclinations of their discipline. EM is a
conventional decision-making system not because of the
method managers use to solve problems, but because it is
coercive.
Ecosystem-based complex-adaptive problem solving
requires generally applicable environmental limits. Such
limits do not impose particularized directives from
government authorities. Instead, they create the space
within which adaptive problem solving can occur. In other
words, government’s legitimate role is to decide what the
limits are to be; and for the governed, individually and in
groups, to decide how those limits are to be achieved. The
first is the role of law; the second is autonomous
adaptation. The first is the role of government; the second
is the right of the citizen. Without general limits, citizens
6 – Not Ecolawgical: Modern Environmental Law
83
do not have circumstances within which local, independent,
adaptive innovation can take place.
(3) Decision-makers
Ecosystem managers do not like the idea of generally
applicable environmental limits. They want to decide limits
case-by-case. They also want to be the ones to decide how
those limits will be achieved. They want to control all of it:
the objectives, the value judgments, the social trade-offs,
and the particular means to an end.
EM is premised on the idea that only certain kinds of
scientists are qualified to make decisions about ecosystems.
Because ecosystems are highly complex, they argue that
their affairs should not properly be the domain of amateurs.
The reality is that EM decisions are rarely scientific.
Instead, they involve trade-offs – between human use and
ecosystem function, between short-term and long-term
goals, between economic and ecological needs, and
between political interests with conflicting aspirations.
These trade-offs require value judgments. Making value
judgments is not a scientific enquiry. Instead, EM decisions
reflect economics, social welfare, and political ideology.
Ecosystem managers have no particular expertise to
perform this function, but EM gives them the power to
establish and promote their own priorities.
(4) Discretion
Discretion-based decision-making is not limited to EM, or
indeed to environmental law. It has become a feature of
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Ecolawgic
administrative action in modern welfare states. 138 Statutes
grant wide powers to agencies to craft regulation and
policy, with minimal direction and supervision from the
legislative branch. 139 Courts have become increasingly
indeterminate, partly because vague statutory language
requires them to fill in large gaps left by legislatures, and
partly because of increased reliance upon policy grounds to
justify decisions, sometimes in an overtly ideological
manner. Especially but not only in environmental law, one
strains to find coherence from case to case. But even when
courts do badly at being consistent and principled, there are
important differences between the judicial process and the
unsupervised administrative powers that characterize EM.
Under a systemic rule of law, judges are constrained by the
content of the statute, by the non-legislative nature of their
judicial role, by the decisions of courts interpreting the
same statute in previous cases, by the principles of statutory
interpretation, by the expectation that they will articulate
reasons for the result that they have reached, and by the
availability of appeal to a higher court. Separation of
powers still applies. Courts remain limited to their judicial
function, and have the opportunity to fill in gaps only to the
extent that the other two branches leave them gaps to fill.
Even when judges rely on policy grounds or disrupt the
theoretical consistency of precedent-based decisionmaking, they are still subject to inescapable restrictions on
their power.
Ecosystem managers do not share these limits. Except in
those instances where a statute prescribes a specific, narrow
and well-defined mandate, ecosystem managers typically
6 – Not Ecolawgical: Modern Environmental Law
85
have broad discretion to decide what is best—acting as
legislators, administrators, and judges all rolled into one.
They are not accountable in the same manner as judges.
They do not give written reasons. There is no notion of
precedent; indeed, EM does not pretend to be consistent
from case to case, but to adjust and adapt as it goes along.
Broad discretionary mandates provide limited grounds for
judicial review. Typically there are no binding rules or
principles to apply, no mandatory goals to achieve, and
little democratic accountability. The public has little control
over the approach to be taken or the value judgments that
are pursued. Broad discretion means that there is ample
opportunity for political considerations to be reflected in
any particular decision.
EM places ecosystem conditions in the hands of a
professional elite empowered to shape conditions one
system at a time as it sees fit. It prevents environmental law
from becoming a coherent, predictable discipline. The most
effective excuse for arbitrary environmental decisions is to
maintain at the outset that each case must be based on its
own particular circumstances. The best way to acquire
centralized control over environmental conditions is to
insist that ecosystems be managed.
B. Environmental Assessment
Environmental assessment (“EA”) is a particular instance
of the application of ecosystem management ideas. It
embodies the notion of law as process – of discretionary,
participatory decision-making in the absence of substantive
rules or standards. It has three premises: (1) that
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Ecolawgic
environmental decisions should include a process of public
comment; (2) that the environment should be managed to
maximize public utility; and (3) that environmental
governance should be a discretionary exercise not subject
to general rules and principles.
(1) Public comment
Tom has gone to his lawyer to seek advice. His next-door
neighbour, George, is an irritating man, loud, obnoxious,
rude, with a poor dress sense and an irritating yappy dog.
Tom has just completed an exhaustive poll of the residents
up and down his street. They agree unanimously: George
must be put to death.
If Tom’s proposal is slightly amusing, it is because it is
preposterous. George’s right to life and physical security is
not dependent upon community opinion. Tom is unable to
seek approval for his project because no official is
empowered to sacrifice George’s life even though it might
improve the quality of life for everyone else in the
neighbourhood.
Compare Tom’s case with a typical proposal subject to
EA. 140 A new natural gas power plant is proposed for the
outskirts of a city. Ninety per cent of the neighbouring land
owners within 10 kilometres of the site object to the
creation of the plant, on the grounds that it will contribute
pollution to the urban air and intensify smog. In this
scenario, depending on the jurisdiction, the public may
have the right to comment, 141 and if so, those comments
must be taken into account in the decision to be made by
6 – Not Ecolawgical: Modern Environmental Law
87
government officials. 142 Environmental assessment
endorses the idea that the views of the public are relevant
considerations in determining whether the proposed activity
should be permitted.
Some might claim that the difference between these
scenarios is that one is environmental and the other is not:
the power plant proposal is an environmental issue because
the effects of the plant will be imposed upon the
community rather than be limited to the property where the
plant is located, whereas George’s life is his own private
matter. No one else has a legitimate interest in whether
George lives or dies, and therefore the community has no
role to play in determining his right to personal security.
These are false distinctions. In fact, the complaint against
George is as environmental in nature as the objections to
the power plant. He is irritating to listen to, he is ugly to
look at, and his dog is annoying. These contributions occur
within the environment in which his neighbours live. If
George’s transgressions are sufficiently serious, they may
constitute private nuisance, in which case the property
rights of his neighbours will trump his right to carry on as
he is. An action in nuisance would be based upon rules and
principles, the application of precedent, and a process of
judicial fact-finding in a contest of rights. The outcome is
not certain, but nor does it depend upon the views of the
mob up and down the street. Not even George’s right to life
and physical security are absolute. His right to life would
yield if he attacked someone with lethal force and the
victim killed George in self defence. But George’s rights
are independent of the immediate political context.
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Ecolawgic
In contrast, the interests at stake in the EA of the proposed
power plant are very much subject to the immediate
political context. Instead of privately held substantive rights
that determine what can be done and where, the widelyheld procedural rights of comment and participation may
affect the government’s view of the proper result.
(2) Public utility
Since the beginning of the Industrial Revolution, the degree
of human influence on the planet has grown at an everaccelerating pace. This impact is caused by the everyday
activities of billions of people, causing environmental creep
– the incremental transformation of ecosystems. Day by
day, person by person, industry by industry, normal human
activities produce cumulative impacts upon ecosystems.
Occasionally there are catastrophic, sudden events – a
chemical spill or oil leak, for example – but most
environmental impact from human activity is incremental.
The purpose of environmental assessment is not to halt this
incremental transformation, but to accommodate it. 143 Its
quest for the betterment of the people is a mandate to seek
the public interest. 144 In contrast, the test to be applied in
the struggle between Tom and George is “Which of the
parties has a superior legal right to what they ask?” With
respect to Tom’s proposal to do away with George,
George’s right to life clearly trumps Tom’s inconvenience
and irritation at having him around. On the other hand, if
repeated visitations from George’s dog onto Tom’s lawn
constitute a nuisance, Tom’s property rights trump
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George’s right to allow his dog to run around the street
unleashed. The outcome will not always be obvious in such
conflicts, but the nature of the inquiry is clear. The relevant
considerations are limited to the nature and scope of the
rights in question. In contrast, officials will approve or
prohibit the power plant depending on whether it makes the
community better off as a whole.
The public interest does not necessarily, or even regularly,
equate to ecosystem protection. Instead, EA invokes tradeoffs – between human use and ecosystem function, between
short-term and long-term goals, between economic and
ecological needs, and between political interests with
conflicting aspirations. A mandate to seek the public
interest is a mandate to engage in maximizing economic,
social and political utility, as assessed by government
officials. Instead of serving to protect the environmental
welfare of ordinary citizens, the utilitarian calculus of
balancing costs and benefits allows their diffuse interests to
be placed aside when they are judged to be less valuable
than other competing considerations. 145 EA does not use or
apply a principled definition of environmental impact, and
its purpose is not solely, or even primarily, ecosystem
protection.
(3) Discretion
EA is not subject to rule of law norms. Instead, it is
predominantly based upon discretion. Rather than
establishing a substantive test, most statutory EA regimes
merely list matters or factors that officials need consider,146
such as the purpose of the project, alternative methods of
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carrying it out, its advantages and disadvantages, and its
potential environmental effects. Unlike a binding
substantive rule, a list of factors provides wide discretion.
To see that this is so, consider different circumstances.
Instead of environmental assessment, imagine an officer at
a driver licensing bureau. If the criterion stipulated in the
statute or regulation for issuing driver licences is “16 years
of age or older”, the function of the officer who issues the
licences is to assess whether the facts satisfy the test.147
There is little discretion in this decision.
The nature of the decision is quite different if, instead of
“16 years of age or older,” the statute or regulation instructs
the officer to consider a list of criteria, such as:
(a) the age of the applicant;
(b) the maturity of the applicant;
(c) the length of the applicant’s hair;
(d) the wealth of the applicant;
(e) the applicant’s punctuality; and
(f) such other matters as the officer considers
relevant.
The officer is now empowered essentially to come to
whatever decision she likes. Consider the decision to be
made about an applicant who is 20 years of age, appears
shy and unsophisticated, has short, neat hair, is driving an
expensive car, is ten minutes late for the appointment, and
appears to be very nervous. The officer is required only to
consider the factors listed above. She may assign them the
weight she deems appropriate, and conduct her own
internal calculus to reach a conclusion. The outcome will
differ depending upon which officer assesses the
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application. Unless the officer has failed to take the minor
step of turning her mind to these factors, the decision is
unassailable because it cannot be wrong.
The same is the case with EA decisions. If the decisionmaker has a sufficient number of factors to consider, any
result is defensible. There are no binding rules or principles
to apply, no mandatory goals to achieve, and little
democratic accountability. There is no notion of precedent.
The public has little control over the approach to be taken
or the value judgments that are pursued. Broad discretion
means that there is ample opportunity for political
considerations to be reflected in any particular decision. In
each case, officials have an instrumentalist mandate to
come to the preferred result without reference to concrete
rules or standards.
C. Environmental Regulation
Even environmental rules that appear to be concrete belong
to regimes of discretionary judgment calls. Environmental
regulations and standards often identify specific limits or
prohibitions on environmentally detrimental activities or
substances. They are created to reflect the principles and
prohibitions contained in the statute under which they are
promulgated. However, where the contents of the statute
are themselves indeterminate, there is no concrete rule or
set of criteria to apply to formulate the standards. Both the
formulation and enforcement of the rules are highly
discretionary, and tend not to be based upon common
abstract rules. Therefore, their formulation and enforcement
can be highly political and potentially arbitrary. In these
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respects, even environmental regulation is performed under
the umbrella of ecosystem management. The explicit or
implicit objective is to fashion the best outcome in
environmental, economic, social and political terms
through the exercise of flexible authority.
Consider a hypothetical regulatory standard issued under an
imaginary statute. Assume that the statute’s objective
simply is to “prohibit pollution that harms the environment
and endangers human health.” The standard restricts the
concentration of substance X in effluent to .02 micrograms
per litre. There is no general rule other than the vague
objective in the statute – no other abstract articulation of
the level at which the standard is to be set. How was the
standard arrived at? Questioning the regulator might
produce the following:
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Why is the standard for this permit set at .02
ug/l?
That is the level that protects the environment
and human health.
What do you mean? What happens if we allow
concentrations above .02 ug/l?
Concentration of the substance accumulates in
fish and fish die.
At .02 ug/l, there is no accumulated
concentration or fish loss?
Well, yes, there will be some.
Well then, what happens at .03 ug/l that does not
happen at .02 ug/l?
Higher biomagnification of the substance in fish
tissue.
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Could we not say the same between .02 ug/l and
.01 ug/l?
I beg your pardon?
Will there not be a higher accumulation of the
substance in fish tissue at .02 ug/l than at .01
ug/l?
Yes.
Then your description does not explain why the
proper standard is located at .02 ug/l rather than
.03 ug/l or .01 ug/l. Why did you draw the line at
.02 ug/l?
That is our judgment of where the acceptable
risk lies for aquatic life.
How do you arrive at that judgment?
We consider both the likelihood of adverse
effects and the magnitude of those effects should
they come to pass.
Presumably if you set the standard lower, the
likelihood and the potential magnitude would be
lower.
Yes.
So you still haven’t answered the question: why
at this particular number?
We judged that the benefits of lowering the
number from .02ug/l in terms of likelihood of
adverse effect and magnitude of that effect did
not justify the additional burdens of achieving
the lower standard.
Burdens on whom?
The regulated industries.
So you are measuring the difficulty in
complying with a more onerous standard?
Yes.
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Q:
So if the cost of compliance is very high, the
standard becomes less onerous than it would
have been.
Well, no, not necessarily. This industry is
particularly fragile, and the government has
spent many resources trying to develop it. Plus,
it depends on the nature of the harm that may
occur.
What do you mean?
There are some kinds of harm we would not
allow regardless of the cost of prevention.
Such as?
Adverse effects on human health.
You also set regulations for automobile exhaust
and smokestack emissions, do you not?
Yes.
Don’t they have adverse effects on some
members of the human population?
Yes. But it is not practical to set those limits at a
level where there are no adverse effects.
So you do weigh compliance burdens even when
it comes to human health?
I suppose so. But we do not take human health
lightly.
Of course not. But it does have a price, yes?
No, we are not in the business of trading off
human life and health for economic benefit.
Well, actually you are, that’s what you’ve just
said.
Well, we are not in the business of shutting
down economically essential activity because of
marginal effects. There is no such thing as zero
risk unless the activity is shut down altogether.
If I can get back to your original question about
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substance X, above .02 ug/l we lose an
unacceptable number of fish.
How many?
It is not a question of an absolute number. It is
impossible to know exactly how many.
Then the effect you are preventing is not based
on an absolute number of fish lost.
No.
Then what makes the number unacceptable?
The proportion of the population that the
estimated number of deaths represents.
Population of a particular species?
The most sensitive species of fish in many of the
bodies of water into which substance X is
expected to be discharged.
Is it more sensitive generally, or only with
respect to substance X?
It is more sensitive in several respects, but the
relevant respect is in relation to exposure to
substance X.
What percentage loss of the population is too
high?
The portion of population from which the
species should be able to recover. We will be
requiring annual monitoring of the population in
receiving bodies of water.
And you have factored in the effects of
synergistic and cumulative effects of other toxic
substances that might be in the water?
To the best of our ability.
What do you mean by that?
It is impossible to know conclusively all the
other substances that might be present in all the
bodies of water to which the standard applies.
Then how do you draw the line?
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A:
We gather as much information as we can about
other suspected hazardous substances.
How do you know what the concentration of
substance X is in the receiving water if there is
more than one source in the same area? Or for
that matter, anywhere on the same watershed?
We consider the possibility that there is more
than one source when we set the standard.
How many sources do you assume will be
present?
We don’t set a specific number.
Then how do you know what the multiplier
should be?
Keep in mind that there will be dilution when
the substance enters the water and travels.
But you have assumed that anyway, in setting
the standard in the first place, yes?
I don’t follow.
The concentration of substance X that you will
allow out of the pipe is more concentrated than
you would want to exist in the lake or river, no?
Yes, of course.
So you have already discounted for dilution.
In a sense, yes. But we build in a safety factor to
account for the potential for multiple sources.
And synergistic effects?
We mostly rely on previously documented
evidence of particular substances.
So you do not actually go and take
comprehensive samples every time a new
standard is proposed.
No.
So you are just guessing?
It is better than a guess. It is based on the best
information available to us.
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Within the constraints of time and technology?
And resources.
Of course. And the effects of the contamination
on the other organisms in the lake ecosystem
that form part of the food web of which your
subject species is a part?
Again, to the best of our ability.
I would be hard pressed to state the general rule
you have followed to develop the standard for
substance X.
There is no general rule. Context is everything.
But there must be a common set of criteria, or a
standard definition for environmental harm that
you use each time.
It doesn’t work that way. We can’t define it, but
we know it when we see it.
Under modern regulatory regimes, the utility of air or water
emissions is weighed against the risk that they pose to those
who will be subjected to them. Where the benefits of the
emissions are judged to outweigh the risk, the regulatory
authority issues an approval for those emissions to occur. In
doing so, it sacrifices the autonomy of those individuals by
deeming it acceptable for the facility to emit the
contaminants and thereby expose them to the risk. Life
involves risks, but the conceptual difference between
voluntary and involuntary risk is not often recognized in
public policy decisions. Officials are willing to substitute
their own assessment of reasonable risk in place of the
personal assessments of the people who will be subjected to
them. Such decisions belong to autonomous individuals.
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D. The Law of Ecosystem “Services”
Ecosystem services (“ES”) are commonly defined as those
natural processes that are essential to human welfare. 148
Lists of ES commonly include air and water purification, 149
waste decomposition and soil generation, pollination and
photosynthesis. 150 The concept of ES is both
anthropocentric and utilitarian. 151 It encompasses only
those natural phenomena that are important to the life and
prosperity of human beings. 152
Academics and advocates have proposed at least three
approaches to protecting ES. One is a regulatory approach
that would use a variety of public law machinery to restrict
actions that could detrimentally affect ES. 153 The second
would pay people for not harming ES. 154 Under a third
approach, governments would create markets for ES by
setting environmental caps such as emission limits on
particular industries or facilities and then allowing
companies to buy and sell excess room under the caps. 155
These approaches share three premises. The first is that ES
are distinct ecological features or processes capable of
specific legal protection. The second is that although some
ES have no market value because they are not the subject
of property rights and/or are not easily exchanged, all ES
have an economic value that can be calculated by
measuring their actual or potential importance to human
wellbeing. The third is that since ES are essential to
humans, adverse effects imposed upon ES are negative
externalities 156 that should be restrained in the public
interest. Each of these premises is flawed.
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Premise 1: Ecosystem services are distinct features or
processes that can be specifically protected
ES are only distinctive because they seem important to
human survival and prosperity. 157 Since in an ecosystem
everything is connected to everything else, to assign
importance to a specific list of ecosystem features is
problematic. All organic processes, whether directly useful
to humans or not, are products of the ecosystem within
which they occur – they are the result, but not the end result
(because there are no end results), of millions of years of
competition, natural selection, adaptation and evolution
within systems of interacting organisms and non-organic
resources. Without the dynamics of the systems in which
they are found, the phenomena would not exist. Therefore,
protecting ES requires that the systems in which they exist
operate and evolve in the way that they do. Ecosystems are
unplanned, dynamic, changing, uncertain, and uncontrolled.
Those are the conditions that produced ES. Aiming to
specifically protect ES to the exclusion of the rest of the
system does not sustain the conditions that produced them.
Protecting ES is a specific, instrumentalist objective that
flies in the face of the logic of ecosystems. The fate of ES
depends on the fate of the systems within which they
emerged.
Premise 2: The economic value of ES depends upon
their importance
Many ES are either not the subject of property rights or
cannot be easily bought and sold in markets. For example,
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ES provided by atmosphere and oceans 158 fall outside the
realm of property rights. Other ES are generated by
ecosystem features found on land subject to property rights,
and yet the ES may still not be easily exchanged. For
example, a wetland is subject to the property rights of the
owner of the land on which it is found, but the ES provided
by those wetlands, such as flood control and water
purification, extend beyond the wetland’s geographical
location. Owners of surrounding land and users of the water
would have an interest in preserving the wetland. However,
because the wetland provides benefits that are diverse,
unevenly distributed and difficult to trace, an agreement
between its owner and all those who benefit from its
existence would be unlikely. 159 Many would be unaware of
these benefits until it was destroyed; and even then, since
one wetland is merely part of a larger watershed, its
contribution to water quality may be difficult to ascertain.
Even if perfect information was available, where benefits
are diverse or resources are “open-access”, 160 those who
benefit are apt to become free riders 161 by having other
people pay for the preservation of the resource while
reaping the rewards of its existence.
Some scholars maintain that an economic value can be
calculated for ES by assessing their importance to human
well-being. In 1997, one of the first studies to estimate the
economic value of global ES reported that the value of 17
of the Earth’s ES, including air and water regulation, was
worth $33 trillion (US) per year. 162 An updated version of
this study conducted in 2014 estimated the value at $145
trillion.163 If one accepts the premise that value is
proportionate to importance, then $33 trillion or even $145
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trillion seems much too low. Instead, the Earth’s ES should
be priceless, since without them everyone is dead. But ES
are not actually priceless, or worth even $33 trillion. The
economic value of ES depends on the same market
dynamics as the value of everything else: the existence of
rights and how much people will pay for those rights.
Whether people will pay for something and how much they
will pay depends on the demand and supply of
exchangeable interests rather than upon importance or
utility. 164 The classic example of a high value, low utility
good is diamonds, which are fairly useless but extremely
valuable. At the other end of the spectrum, water is
essential to life, but in water-rich regions, it may cost little
or nothing because there is plenty available for all. 165
Consider the economic value of a resource that is essential
but not scarce: gravity. On one hand, without gravity we
would all drift out into space and die; indeed, life on Earth
would never have arisen at all, planets would not exist to
orbit a sun, and so on. Gravity is essential to life, and
therefore its value is infinite and incalculable. On the other
hand, no one is in a position to remove or eliminate gravity,
and nobody is able to exclude others from its effects. It is
not scarce. It is not a consumable resource but a constant
physical property. No one has rights to gravity and no one
has the right or ability to take it away. No one would pay
for gravity since there is no way to avoid it, and there is no
ability or reason to get more or less of it than one inevitably
is exposed to. Therefore, the economic value of gravity, a
feature of nature upon which life depends, is zero.
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Attempting to measure the economic value of gravity may
seem absurd, but the absurdity is itself the point: the
economic value of a resource is not determined by its
importance. What matters is its scarcity, and whether it is
subject to rights that can be exchanged. Other
environmental resources and ecosystem functions are also
essential to life. Pollination, air and water purification, and
soil decomposition are not as plentiful as gravity, and
unlike gravity, they can be diminished by human action. As
a result, it is tempting to leap to the conclusion that they
can be, or should be, assigned an economic value.
However, like other resources, their economic value
depends upon whether they are subject to rights that can be
bought and sold, and the supply and demand for those
rights. 166
Premise 3: Harms
externalities
caused to ES are negative
A negative externality is a cost imposed on someone other
than the party creating the cost. 167 A factory emitting air
pollution on residential neighbours “externalizes” the
burden of that pollution onto the residents because it does
not have to incorporate its negative value into the cost of
producing its hammers. Therefore, the factory will produce
too many hammers because their financial cost is lower
than their actual cost. 168 Since ES are essential to humans,
adverse effects imposed upon them are externalities.169
Those externalities should be restrained in the public
interest, ideally by internalizing the cost onto the source of
the effect.
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Two objections to this reasoning exist, the first where the
victims of the externality have a legal right to resist it, and
the second where they have no such right. Where residents
have a right to be free from air emissions, identifying the
emissions as an externality is straightforward but
redundant. The emissions violate a legal right, and the
violation calls for a remedy. If the right is enforced, the
externality will be prohibited (or the right-holder will be
compensated by court order or negotiated settlement).
Where the residents have no right to limit air emissions,
their characterization of the pollution as an externality is
merely a preference. They prefer not to have pollution
imposed upon them, while the owners of the factory prefer
not to be limited in the pollution that they emit. Alleging
externalities begs the rights question: who has the right to
do what? 170
The relative nature of externalities can be illustrated by
comparing the air pollution scenario to a conflict about
speech. In each, parties are in conflict and the difficulty lies
in determining who imposes upon whom. If Bob states his
opinion on a soapbox in the town square in a manner to
which Joyce objects, does Bob impose upon Joyce when he
speaks or does Joyce impose upon Bob when she prevents
him from speaking? If Bob has a “right to free speech”,
then Joyce’s censorship is a violation of Bob’s right.
However, if Joyce has a right not to be defamed and Bob’s
words have the effect of lowering Joyce’s character in the
estimation of her peers, then Bob’s speech violates Joyce’s
right. The conclusion depends on the existence and
definition of the rights held by each party. It is impossible
to know which party imposes upon the other without
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assessing those rights. The same is true for air emissions.
Where a factory produces air emissions, it is tempting to
assume that the emissions are an externality because the
factory is imposing them on nearby residents. However,
that conclusion depends upon both the extent of the rights
held by the residents and the nature of the emissions
created by the factory. If the residents have no right to be
free from air emissions, the factory is not causing an
externality. If the residents have a right to be free from
emissions that present a danger to human health, then the
factory is producing an externality if the emissions are
toxic, but not if they consist of steam. In the absence of
rights, it is premature to identify where the externality lies.
One might argue that the regulatory prohibition of pollution
designates pollution as an externality, which therefore
justifies its prohibition. However, this reasoning is circular:
the existence of externalities is commonly cited as a
rationale for regulation that prohibits or limits them. 171 If
the existence of the externality depends upon its regulatory
prohibition, then the externality cannot be the rationale for
the regulation, since before the regulation came into force,
the externality did not exist. The initial problem still
remains: in the absence of defined rights, where does the
externality lie?
ES are the product of a long and ongoing process of natural
selection in ecosystems. Protecting ES because of their
usefulness to human society is an instrumentalist mandate
in conflict with the nature of ES and ecosystems. In effect,
proposals to protect ES threaten to do to ecosystems what
advocates pretend to reject: to place more importance on
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their use to human society than on their natural, unplanned,
ungoverned operation. Laws designed to protect specific
ecosystem services are misguided because they do not
preserve the ecosystem dynamics that produced the
“service” in the first place. If humans depend on ES, then
they also depend on the way ecosystems work, because the
two are really the same.
E. Conclusion
Modern environmental law does not reflect the logic of
ecosystems. It is a policy-driven, intensely political
phenomenon. It is not based upon abstract rules or rights.
Traditional causes of action in tort law, such as trespass,
nuisance, negligence, and riparian rights, still exist but their
application is limited and, ironically, they have been curbed
by environmental regulatory regimes that give priority to
public interest.
Public environmental law is dominated by the imperative of
defining public interest to fit the agenda of the day. In its
present state, environmental regulation serves as a political
compromise between the polity’s increasing alarm about
the state of the natural world and its expectations for the
benefits of industrial civilization. This compromise requires
intricate management case by case. Regulatory action
serves to reflect a sufficient degree of moral outrage at the
notion of environmental degradation without seriously
impeding its occurrence. The lack of fixed rules makes
such ad hoc management possible. Environmental law has
not addressed, much less resolved, its central conceptual
issues because governments do not wish to be committed to
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any particular definition of what it is they are attempting to
prevent.
Governments of all levels and stripes are significant
sources of environmental harm as they pursue other
priorities like resource development. The amount of
regulation steadily grows, but not the quality of protection.
Legislative and regulatory action is as likely to encourage
actions that threaten ecosystem integrity as it is to restrict
them, and regulatory authorities are, at best, inconsistent in
their devotion to ecosystem protection. When
environmental quality is cast as a public good, government
paradoxically becomes the sole source of protection and the
leading source of trouble.
Objections to the use of abstract rules in environmental law
reflect misconceptions about law and about ecosystems.
Legal decisions of all kinds are frequently made in the face
of scientific and evidential uncertainty by applying abstract
rules and principles. Indeed, such variability is a reason to
have abstraction, not a reason for abandoning it. There may
indeed be an astronomical number of interactions taking
place in a multitude of unique ecosystems, but all of them
have common characteristics that allow them to belong to
the category called “ecosystems”. Making decisions on a
case-by-case basis without generally applicable rules is
arbitrary law and lazy science. It avoids having to articulate
the rationale for a decision in abstract terms, and for having
to apply the same rationale in the next case.
Ecosystems and markets are unplanned. They operate as
complex-adaptive systems with their own inherent rules
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and dynamics. To manage ecosystems and markets is to
manipulate them, making them something other than what
they were and what they would have been. Managing
ecosystems in order to protect or preserve them is a
contradiction because the act of management creates the
influence that changes the system. The pursuit of specific
environmental, economic and social objectives means that
different preferences will be expressed in different
situations. The attempt to dictate outcomes means that
elements within the system are not autonomous or engaged
in a truly competitive pursuit of self-interest, the
information normally produced through system interactions
is not accurate and the system’s evolutionary destiny is
altered. When law reflects the logic of ecosystems, there is
no justification for a process of utilitarian, discretionary,
case-by-case decision making tightly held by political
officers.
Ecolawgic: A Manifesto
1. The proposition that the law should reflect that which is
good, moral, or desirable is a fiction. Good, moral and
desirable are matters about which people disagree and no
view can be proven to be correct. In a pluralistic society,
entrenching a particular view about what is good does not
reflect the predilections of all members of the community
to which it is applied. Law becomes a vacuum that can be
filled by whatever interest gains access to state power to
achieve subjective preferences.
2. Ecosystems and markets arise spontaneously. They are
not created or invented by human design. They operate
according to their own rules, which cannot be changed by
government decree. Ecosystems and markets may be
interfered with, but the nature of their processes cannot be
altered. These systems are not just collections of things.
They consist of relationships and interactions that express
information and produce outcomes. They are organic and
evolutionary, changing through time. The notion of
dictating specific ecological or economic results is
inconsistent with the way they behave.
3. Ecosystems contain their own immutable logic:
competition for scarce resources leads to natural selection,
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in which those organisms better adapted to conditions
survive and reproduce, resulting in evolutionary change.
Markets share this logic: competition for scarce resources
leads to commercial success for those enterprises better
adapted to economic and social conditions, producing
economic variation and development. In both, the dynamics
of the system arise from the interaction of a multitude of
individual actions, decisions and adaptations.
4. Competition is a neutral, impersonal dynamic. It protects
everybody because it prevents anybody from taking
control. In a competitive market, no one’s personal
judgment can prevail because no one has the power to
enforce that judgment across the market. It precludes
anyone from fixing prices, limiting supply, restricting
employment, or directing how things are going to go. In
ecosystems, even organisms at the top of the food chain
control neither the actions of other organisms nor system
outcomes. The dynamics of competitive selection and
adaptation proceed relentlessly. They produce collective
results without collective decision-making: order without
direction.
5. Autonomous individuals are the elements of markets and
ecosystems. Their interactions, survival strategies,
successes and failures are the stuff of which these systems
are made. When people participate in markets, they are one
of many buyers and sellers whose interactions determine
supply, demand and price. When people participate in
ecosystems (which is always), they are one of many
organisms and species whose interactions with each other
and their surroundings determine ecosystem conditions.
Ecolawgic: A Manifesto
111
6. Liberty and ecological integrity are not opposites. At the
root of the environmental plea is a quest for liberty: leave
me alone. The right to autonomy is the abstract legal
principle from which all negative legal rights derive.
“Autonomous” means not directed by a coercive state or by
the force of other people. It means the right to be free from
interference in ecosystem or market interactions. That right
is breached when conditions are imposed other than
through the dynamics of competitive markets and
competitive ecosystems. Autonomy includes the right to
participate in markets and ecosystems under conditions that
exist independently of monopolistic or non-competitive
forces, whether public or private.
7. Autonomy does not mean that people have the resources
to do as they please or that they are not subject to pressures
or limitations created by living in the world. Autonomous
individuals are free to do their best to solve the challenges
of their lives – financial, physical, psychological, and social
– given an infinite variety of obstacles and difficulties.
When law reflects the logic of ecosystems, individuals are
at liberty to pursue their own self-interest. Statutes do not
protect people (or market participants, or ecosystem
organisms) from themselves, and administrative and
adjudicative decision-makers do not modify the content of
the law in accordance with the context of the case or the
personal circumstances of the parties.
8. Law is a system too. Its abstract features should resemble
those of ecosystems and markets: generally applicable rules
and principles, intrinsic neutrality, and internal coherence
112
Ecolawgic
and integrity. The mandate of decision-makers is not to “do
right” but instead to “let the system speak”. People make
their own decisions and craft their own survival strategies
based on the generally applicable framework that the law
provides, and they are allowed to succeed or fail on the
basis of those strategies. Their actions and decisions
contribute to markets and ecosystems, and their aggregate
effects make those systems what they are.
9. Like ecosystems and markets, the law should be
internally coherent. Every rule and principle should be
connected. Every decision should be related to all others.
Within a properly constituted legal system, there is an
answer for every dispute that arises. Such a system treats its
participants dispassionately and equally, subjecting all to
the same rules. Systems do not play favourites.
10. The hand is invisible, nature knows best, and justice is
blind. A corollary of the right to autonomy is the prime
directive of government: establish abstract rules, and then
let the systems run. Once generally applicable legal
parameters are established, the “right” result is what the
system says it is. The right price is the price dictated by
competitive supply and demand. The right environmental
conditions are those produced in competitive ecosystems.
The right decision is that prescribed by the generally
applicable principles of a systemic rule of law.
113
NOTES
1
Brian Tamanaha, “How an Instrumental View of Law Corrodes the
Rule of Law” (2007) 56 DePaul LR 469 at 469-70.
2
See e.g. Ursula Kettlewell, “The Answer to Global Pollution - A
Critical Examination of the Problems and Potential of the Polluter-Pays
Principle” (1992) 3 Colo J Int'l Envtl L & Pol'y 429; Scott LaFranchi,
“Surveying the Precautionary Principle's Ongoing Global
Development: The Evolution of an Emergent Environmental
Management Tool” (2005) 32 Boston Coll Envtl Aff LR 679; JB Ruhl,
“Sustainable Development: A Five-Dimensional Algorithm for
Environmental Law” (2009) 18 Stan Envtl LJ 31.
3
See e.g. Harrison v Carswell, [1976] 2 SCR 200 (Laskin CJ,
dissenting).
4
Tamanaha, supra note 1 at 503, quoting the account given by Richard
Posner, a “pragmatist” judge, of his approach to judging: “The way I
approach a case as a judge is first to ask myself what would be a
reasonable, sensible result, as a lay person would understand it, and
then, having answered that question, to ask whether that result is
blocked by clear constitutional or statutory text, governing precedent,
or any other conventional limitation on judicial discretion.” (citation
omitted). Posner appears to believe that his role as a judge is to do what
he thinks is right unless something specifically prevents him from
doing so.
5
Brian H Bix, A Dictionary of Legal Theory (Oxford University Press,
2004) at 214.
6
“[I]t is fair to surmise that a greater proportion of contemporary
judges are judicial pragmatists ... Judicial decisions today routinely cite
policy considerations, consider the purposes behind the law, and pay
attention to law’s social consequences.” Tamanaha, supra note 1 at
490.
7
See Louis Kaplow and Steven Shavell, Fairness versus Welfare
(Harvard University Press, 2002); Hamish Stewart, “Persons and Their
Well-Being: A Critical Discussion of Kaplow and Shavell’s Fairness
versus Welfare” (2004) 30 Queen’s LJ 1.
8
(1960) 3 Journal of Law and Economics 1.
9
Michael Butler and Robert Garnett, “Teaching the Coase Theorem:
Are We Getting It Right?” (2003) 31 AEJ 133 at 134.
10
Tamanaha, supra note 1 at 481-82.
114
11
Notes
Benjamin N. Cardozo, The Nature of the Judicial Process (Yale
University Press, 1960) at 141.
12
For a comparison of Hayek’s view to those of Dicey, Raz, Rawls,
and others, see Michael Neumann, The Rule of Law: Politicizing Ethics
(Ashgate Publishing, 2002) 1-22. Also see Judith Shklar, “Political
Theory and the Rule of Law” in Allan Hutchinson and Patrick
Monahan, The Rule of Law: Ideal or Ideology (Carswell, 1987) 1.
13
FA Hayek, The Road to Serfdom (University of Chicago Press, 1944)
at 72.
14
“[C]ourts are mere instruments of the law, and can will nothing.”
Tamanaha, supra note 1 at 492, quoting Chief Justice John Marshall, in
Osborn v Bank of U S, 22 US 738 at 866 (1824).
15
FA Hayek, The Constitution of Liberty (University of Chicago Press,
1960) at 153.
16
“If, as antipositivists argue, there is some necessary connection
between law and morality, the rule of law is to some extent the rule of
good law. If, as positivists argue, the rule of law is simply the rule of
the rules certified as valid in a particular legal order, it is the rule of
those rules with the content they happen to have.” David Dyzenhaus,
“The Rule of Law as the Rule of Liberal Principle” in Arthur Ripstein,
ed, Ronald Dworkin, (Cambridge University Press, 2007) 56 at 56, 57;
HLA Hart, Positivism and the Separation of Law and Morals (1958) 71
Harv LR 593 at 594, 602-03.
17
Bix, supra note 5 at 69 - 70.
18
“The formal rule of law is complementary to an instrumental view of
law when considered in connection with legislative declarations of law.
... When moving from legislation to judging, however, the proposition
that judges should strive to achieve purposes and ends when deciding
cases ... raises a direct conflict with the formal rule of law.”
Tamanaha, supra note 1 at 485 (emphasis added).
19
“The language of judicial decision is mainly the language of logic.
And the logical method and form flatter that longing for certainty and
for repose which is in every human mind. But certainly generally is an
illusion, and repose is not the destiny of man. Behind the logical form
lies a judgment as to the relative worth and importance of competing
legislative grounds, often an inarticulate and unconscious judgment it is
true, and yet the very root and nerve of the whole proceeding. You can
give any conclusion a logical form.” Oliver Wendell Holmes, “The
Path of the Law” (1897) 10 Harv LR 457 at 465-66.
20
But on the formalists’ side, not all cases produce debilitating
ambiguity. Application of a rule to a case that falls within the kind of
cases that the rule was designed to address will often provide
straightforward results - results that a purely instrumentalist approach
Notes
115
might disregard in favour of a decision more to the liking of the
adjudicator or administrator. For example, consider a situation where a
poor and desperate father takes a loaf of bread from a large
supermarket chain to feed his hungry children. A judge committed to
the formal rule of law would conclude that the parent has committed
theft because his actions fit within the definition. A results-oriented
judge would endeavour to find that no theft has occurred in spite of the
definition.
21
Ronald Dworkin, Taking Rights Seriously (Harvard University Press,
1977) at 17.
22
“Morality sets ideals for law, and law should live up to them. ... We
see [the union of law and morality] everywhere. We prohibit sex
discrimination because we judge it immoral; the point of prohibiting it
is to enforce and clarify that judgment, and we do so by using ordinary
moral terms such as “duty” and “equality”. Leslie Green, “Positivism
and the Inseparability of Law and Morals” (2008) 83 NY University
LR 1035 at 1036. See also Immanuel Kant, Groundwork for the
Metaphysics of Morals (1784); Alberto M. Piedra, Natural Law: The
Foundation of an Orderly Economic System (Lexington Books, 2004).
23
Tamanaha, supra note 1 at 474-75, quoting Thomas Aquinas who
stated that “[E]very human positive law has the nature of law to the
extent that it is derived from the Natural law. If, however, in some
point it conflicts with the law of nature it will no longer be law but
rather a perversion of law.” (citation omitted)).
24
Ibid at 474.
25
See e.g. Roscoe Pound, The Ideal Element in Law (Liberty Fund,
2002).
26
“... no theorist can give a theoretical description of social facts
without also participating in the work of evaluation, of understanding
what is really good for human persons, and what is really required by
practical reasonableness.” John Finnis, Natural Law and Natural
Rights, 2d ed (Oxford University Press, 2011) at 3. See Raymond
Wacks, Philosophy of Law: A Very Short Introduction (Oxford
University Press, 2006) at 15.
27
Ian Macleod, Legal Theory, 3d ed (Palgrave Macmillan, 2005) at 55.
28
“Generality, promulgation, non-retroactivity, clarity, noncontradiction, requiring the possible, constancy through time, and
congruence between official action and declared rule”. Lon L Fuller,
The Morality of Law (Yale University Press, 1964) at 39-94; “What I
have tried to do is to discern and articulate the natural laws of a
particular king of human undertaking, which I have described as “the
enterprise of subjecting human conduct to the governance of rules.” ...
116
Notes
What I have called the internal morality of law is ... a procedural
version of natural law...” Ibid at 96.
29
Life, knowledge, play, aesthetic experience, sociability, practical
reasonableness and “religion”. John Finnis, Natural Law and Natural
Rights (Clarendon Press, 1980) at 85-90.
30
“...the justification of the law rests ultimately on moral
considerations, and therefore those considerations should also help
shape the contours of legal principles.” Avishai Margalit and J Raz,
“National Self-Determination” (1990) 87 Journal of Philosophy 439 at
439.
31
“... in many – perhaps most – questions of morals the decision has to
come from me (from the man who faces it); and whatever the role of
reasons, etc., may be, they are never conclusive in the way the steps of
a mathematical proof are, nor in the way in which material evidence of
guilt in connexion with a crime may be. ... what I would regard as a
reason, might not be a reason for you – might not function as a reason
in your decisions. This is not trivial, and you cannot brush it off by
murmuring “relativism”. R Rhees, Without Answers (Routledge &
Kegan Paul, 1969) at 95. See Raymond Gaita, “The Personal in Ethics”
in DZ Phillips and P Winch, eds, Wittgenstein: Attention to Particulars
– Essays in honour of Rush Rhees (MacMillan Press, 1989) 124.
32
Robert Nozick, Anarchy, State and Utopia (Basic Books, 1974).
Alasdair MacIntyre states, “... all versions of moral realism ... are
regarded as highly debatable within contemporary philosophy. ... What
the natural law was held to provide was a shared and public standard,
by appeal to which the claims of particular systems of positive law to
the allegiance could be evaluated. But a shared and public standard of
this kind must be one that is able to secure widespread, if not universal,
rational assent.” A MacIntyre, Theories of Natural Law in the Culture
of Advanced Modernity, in EB McLean, ed, Common Truths: New
Perspectives on Natural Law (ISI Books, 2000) 91 at 103.
33
For example, Heinrich Rommen asserts: “... from the highest
principles follow conclusions ... They present themselves immediately
to human reason either as just and hence to be carried out, or as unjust
and therefore not to be done. ... They have received immortal
expression in the second table of the Decalogue: Honor thy father and
mother; Thou shalt not kill; Thou shalt not commit adultery; Thou shalt
not steal; Thou shalt not bear false witness. ... the killing of a slave,
which the positive law occasionally does not punish because it fails to
prohibit it, proves nothing to the contrary. For in the view of such a
legal order a slave is not innocent, since only a person can be innocent.
... Parents, especially the father, have natural rights which the positive
law does not confer upon them, but which, as already existent, it
Notes
117
protects and guarantees. ... Only in these first, self-evident, and
unalterable principles and conclusions, do all people agree.” Heinrich A
Rommen, The Natural Law: A Study in Legal and Social History and
Philosophy, translated by Thomas R Hanley (Liberty Fund, 1998) at
196-212.
34
“[N]o fact seems plainer in the modern world than the extent and
depth of moral disagreement, often enough disagreement on basic
issues.” Alasdair MacIntyre, supra note 32 at 91-93; “The jurists who
believe in natural law seem to me to be in that naive state of mind that
accepts what has been familiar and accepted by them and their
neighbors as something that must be accepted by all men everywhere.
... to those who agree with me I am uttering commonplaces and to those
who disagree I am ignoring the necessary foundations of thought.”
Oliver Wendell Holmes, Natural Law (1918) 32 Harv LR 40 at 41, 42.
35
An ecosystem is “a community of organisms and their physical
environment interacting as an ecological unit.” R Lincoln, G Boxshall
and P Clark, A Dictionary of Ecology, Evolution, and Systematics
(Cambridge University Press, 1982) at 75; “A community of plants
and animals within a particular physical environment that is linked by a
flow of materials through the non-living (abiotic) as well as the living
(biotic) sections of the system.” S Mayhew, A Dictionary of
Geography, 4th ed (Oxford University Press, 2009) online.
36
“The key to natural selection is Malthusian economics. ... Malthus
described how basic environmental resources would ultimately limit
populations, thus creating a struggle for existence. Competition is
inevitable (because of population growth) and thus only some within a
population ultimately survive, while others must perish.” J Kricher, The
Balance of Nature: Ecology’s Enduring Myth (Princeton University
Press, 2009) at 57-58; W Ashworth, The Economy of Nature:
Rethinking the Connections between Ecology and Economics
(Houghton Mifflin, 1995) at 98-99.
37
“[W]hen any essential resource becomes limited, there will
inevitably be some form of competition, direct or indirect, within the
population for access to that particular resource. Not all will obtain it,
and, if it is vital to survival or reproduction, not all will survive or
reproduce.” Kricher, ibid at 58-59.
38
“Losers die and winners eat. The honey bird, skunklike mammal and
hunter … are predators and the hive is prey. But that’s not the whole
cast of characters. The bees and their honey wouldn’t exist without
flowers, but the flowers wouldn’t exist without bees, and so on. Put it
this way: Competitions for feeding and breeding take place in an arena.
The arena is a habitat. The fittest panther in the jungle is a goner if its
habitat goes. And what is a habitat? It’s an intricate, complicated web
118
Notes
of interdependencies.” J Jacobs, The Nature of Economies (Vintage
Books, 2000) at 21-22.
39
Natural selection: “A complex process in which the total
environment determines which members of a species survive to
reproduce and so pass on their genes to the next generation.” M Allaby,
A Dictionary of Ecology (4th ed) (Oxford University Press, 2010)
online.
40
“Natural selection will act on species leading to changes in genotype
and, thus, phenotype. The mechanism is natural selection on heritable
characteristics coupled with slight variability in the heritable
characteristics. This theory is based on the Malthusian law of
exponential growth in the absence of controls on growth, heritable
characteristics that influence survival, and the selective process related
to differential survival.” WK Dodds, Laws, Theories and Patterns in
Ecology (University of California Press, 2009) at 23-24.
41
“Stated formally, natural selection occurs whenever individuals with
heritable variations differ in the number of surviving offspring they
have compared to other individuals in the population (in other words,
they differ in their relative fitness). Natural selection occurs most
commonly and strongly when organisms inherit rare, harmful
variations, like haemophilia (the inability to form blood clots), that
impair an individual’s ability to survive and reproduce. Such traits are
less likely to be passed on to the next generation, thus reducing or
eliminating them from the population. This sort of filter is called
negative selection and often leads to a lack of change over time within
a population, maintaining the status quo. Occasionally, however,
positive selection occurs when an organism inherits by chance an
adaptation, a new, heritable feature that helps it survive and reproduce
better than its competitors. Adaptive features, by their very nature, tend
to increase in frequency from generation to generation, causing change
over time.” D Lieberman, The Story of the Human Body: Evolution,
Health and Disease (Pantheon Books, 2013) at 9 (emphasis in original,
footnotes omitted).
42
“ ... individuals vary genetically within populations. This variation
will ultimately influence who survives when it is crunch time. Those
variants most suited to whatever the environment imposes will tend to
survive and reproduce better than those with different traits.” Kricher,
supra note 36 at 57-58.
43
“Natural selection is the process responsible for adaptation. ...
Selection acts on anatomy, physiology, and, in animals, behavior. It is
the force in nature that quite literally shapes all living things. It explains
why African lions (Panthera leo) have such long canine teeth and
powerful jaws; why certain wasps paralyze spiders and then lay their
Notes
119
eggs on them; why red mangrove trees (Rhisophora mangle) have
stilted roots; why some flowers are tubular in shape and red in colour;
why some molds produce chemicals that inhibit bacterial growth.”
Kricher, supra note 36 at 57. “Nothing in biology makes sense except
in light of evolution.” Lieberman, supra note 41 at 365.
44
“Ecology is a branch of evolutionary biology.” Kricher, supra note
36 at x; “[E]volution provides the basis for ecology, or at least is a
strong pattern driving it.” Dodds, supra note 40 at 26. Dodds calls
natural selection and evolution the second law of ecology and natural
selection the first law of evolution. Ibid at 23-24.
45
“It is significant that one of the commonest objections to competition
is that it is “blind”. It is not irrelevant to recall that to the ancients
blindness was an attribute of their deity of justice. Although competition
and justice may have little else in common, it is as much a
commendation of competition as of justice that it is no respecter of
persons.” Hayek, supra note 13 at 101.
46
David Quammen, “Evolution and Intelligent Design: Mr. Darwin’s
Abominable Volume” (2006) 82 Virginia QR 4 at 6.
47
“Many are born, but not all survive to reproduce. Those that do are a
select, non-random subset of the original cohort. Because individuals
differ genetically, the population evolves as environments change in
various ways. ... Darwin recognized that fitness is largely a
metaphorical term and need not literally mean “nature red in tooth and
claw.” Organisms may struggle against each other, against other
species, or against the elements. But ultimately it will be the genetic
endowment of the various individuals that will weigh most heavily in
the struggle for existence and the ultimate survival of the fittest.”
Kricher, supra note 36 at 59-60.
48
For example, competition may occur “between individuals of the
same species (infraspecific competition), or between different species
(interspecific competition) at the same trophic level, in which the
growth and survival of one or all species or individuals is affected
adversely. The competitive mechanisms may be direct (active) ... or
indirect, when a common resource is scarce.” M Allaby, “Competition”
in the Oxford Dictionary of Ecology 3rd ed (Oxford University Press,
2005) at 100.
49
“Some people erroneously think that natural selection means
“survival of the fittest.” Darwin never used that phrase ... nor would he
have, because natural selection is better described as “survival of the
fitter.” Natural selection doesn’t produce perfection; it only weeds out
those unlucky enough to be less fit than others.” Lieberman, supra note
41 at 365.
120
50
Notes
For example, some species of predators hunt in packs while others
are solitary. Each is an adaptive behaviour. Zebras are one of many
prey species that travel in herds, providing collective protection from
predators. Cooperation occurs because of competition, not in spite of it.
Cooperation in ecosystems is never universal; cooperation allows
organisms to join forces against challenges to their survival. In no
ecosystems do organisms cooperate for the mutual good of all.
51
“According to Darwin’s view (since reaffirmed by a century and a
half of further biological evidence), natural selection is a purposeless
process but an efficacious one. Impersonal, blind to the future, it has no
goals, only results. From scattershot variations, culled and accreted, it
produces pragmatic forms of order. Its driving factors are
hyperfecundity and mortal competition; its products and by-products
are adaptation, complexity, and diversity.” D Quammen, ‘Evolution
and Intelligent Design: Mr. Darwin’s Abominable Volume’ (Spring
2006) Virginia Quarterly Review 4 at 6.
52
“Give me that which I want, and you shall have this which you want,
is the meaning of every such offer; and it is in this manner that we
obtain from one another the far greater part of those good offices which
we stand in need of. It is not from the benevolence of the butcher, the
brewer, or the baker that we expect our dinner, but from their regard to
their own interest. We address ourselves, not to their humanity but to
their self-love, and never talk to them of our own necessities but of
their advantages.” Adam Smith, An Inquiry into the Nature and Causes
of the Wealth of Nations (Encyclopaedia Britannica, 1952) at 7.
53
“The market system is not a place or a thing or even a collection of
things. It is a set of activities of distinctive pattern.” C Lindblom, The
Market System (Yale University Press, 2001) at 52
54
“The laws of ecology and the laws of economics are, at heart, the
same set of laws.” Ashworth, supra note 36 at 205 (emphasis omitted).
“Today, the study of competitive dynamics is standard fare in business
schools. But, ironically, the professors never mention that nature has
been playing by the same rules for eons.” Michael Rothschild,
“Economy as Ecosystem”, in David Boaz, ed, The Libertarian Reader
(Free Press, 1997) 243 at 243 -247.
55
Ashworth, ibid at 116.
56
Richard Epstein, Simple Rules for a Complex World (Harvard
University Press, 1995) at 73.
57
Ashworth, supra note 36 at 98-99.
58
Ibid at 98.
59
Ibid at 116 (emphasis in original); “The great nineteenth-century
British essayist and skeptic Thomas Carlyle was once said to have
remarked to a friend that the best way to train an economist was to
Notes
121
purchase a parrot and teach it to repeat the phrase supply and demand
over and over.” Ibid at 115 (emphasis in original).
60
“It is customary to speak metaphorically of the automatic and
anonymous forces actuating the “mechanism” of the market. Such
metaphors disregard the fact that the only factors directing the market
and the determination of prices are purposive acts of men. There is no
automatism; there are only men consciously and deliberately aiming at
ends chosen.” Ludwig von Mises, in “Ludwig von Mises: Economist,
Philosopher, Prophet” (2011) 61 The Freeman, online: Ideas on Liberty
<http://fee.org/freeman/detail/ludwig-von-mises-economistphilosopher-prophet>.
61
“Every individual is continually exerting himself to find out the most
advantageous employment for whatever capital he can command. It is
his own advantage, indeed, and not that of the society, which he has in
view. But the study of his own advantage naturally, or rather
necessarily leads him to prefer that employment which is most
advantageous to the society ... he intends only his own gain; and he is
in this, as in many other cases, led by an invisible hand to promote an
end which was not part of his intention. Nor is it always the worse for
the society that it was no part of it. By pursuing his own interest he
frequently promotes that of the society more effectually than when he
really intends to promote it.” Smith, supra note 52 at 193-194.
62
Jacobs, Nature of Economies, supra note 38 at 111; Joseph E Stiglitz
and Carl E Walsh, Principles of Microecnomics (WW Norton & Co,
2006) at 27-30.
63
Jacobs, supra note 38 at 108; Ashworth, supra note 53 at 112.
64
Jacobs, ibid at 35.
65
Ibid.
66
“Every organism is defined by the information in its genes, but a
living thing also is defined by its relationships to its prey, competitors,
and predators. In the same way, an organization is defined by its
technology and by its associations with its suppliers, competitors, and
customers. From a bionomic perspective, organisms and organizations
are nodes in networks of relationships. As time passes and evolution
proceeds, some nodes are wiped out and new ones crop up, triggering
adjustments that ripple across each network. Constrained by its key
relationships, each organism and each organization is held in its niche,
pursuing the same goal – the survival of the genetic or technological
information it carries.” Rothschild, supra note 54 at 243.
67
Rothschild, ibid at 246.
68
Jacobs, supra note 38 at 87.
69
Ibid.
122
70
Notes
On the important distinction between different levels of biodiversity
(gene diversity, species diversity, ecosystem diversity, functional
diversity) see Paulo ALD Nunes, Jeroen CJM van den Bergh & Peter
Nijkamp, Biodiversity, Ecosystem Functions and Human Activity in
The Economics of Biodiversity: Methods and Policy Applications
(Edward Elgar Pub, 2003) at 9-13.
71
In ecology, this term has come to refer to both the speed of an
ecosystem’s return to equilibrium and the “magnitude of a disturbance
than can be absorbed… without flipping the current ecosystem to
another regime of behaviour.” Ibid at 11-12; See also CS Holling,
“Resilience and Stability of Ecological Systems” (1973) 4 Annu Rev
Ecol Syst 1 at 1-14.
72
Jacobs, supra note 38 at 89.
73
Ibid at 117.
74
Ibid at 84. See also Holling, supra note 71 at 14: “[S]tability …
represents the ability of a system to return to an equilibrium state after a
temporary disturbance; the more rapidly it returns and the less it
fluctuates, the more stable it would be.”
75
The Concise Oxford Dictionary of Current English (Oxford
University Press, 1995) at 1066 [Oxford English Dictionary].
76
Jacobs, supra note 38 at 94.
77
Ibid at 95.
78
Oxford English Dictionary, supra note 75 at 911.
79
Michael Allaby, Basics of Environmental Science (Routledge, 2000)
at 154; DL DeAngelis and JL Waterhouse, “Equilibrium and
Nonequilibrium Concepts in Ecological Models” (1987) 57 Ecological
Monographs 1; Sir Arthur George Tansley quoted in Eugene P Odum,
Ecology and Our Endangered Life-Support Systems (Sinauer
Associates Inc, 1989); see generally Eugene P. Odum, “The Strategy of
Ecosystem Development” (1969) 164 Science 262.
80
Equilibrium was the source of the balance of nature premise: “Briefly
stated, the Balance of Nature myth has three basic features: First,
Nature, undisturbed by human influences, achieves a permanency of
form and structure that persists indefinitely. Second, this permanent
condition is the best condition for Nature: best for other creatures, best
for the environment, and best for humans. Third, when disturbed from
this natural state, Nature is capable of returning to it.” Daniel Botkin,
“Adjusting Law to Nature’s Discordant Harmonies” (1996) 7 Duke
Envtl L & Pol’y F 25 at 26. Tarlock suggests that the balance of nature
premise was the ecological justification for what was once the
dominant principle in environmental law: let nature be. This principle,
he suggests, was adopted by legislators, regulators, resource managers,
and lawyers, and gradually replaced the progressive conservation
Notes
123
movement’s ethic of multiple use. Tarlock cites Davis Lewis Feldman,
Water Resources Management: In Search of an Environmental Ethic
(JHU Press, 1991) as providing a good case study of this evolution. AD
Tarlock, “The Nonequilibrium Paradigm in Ecology and the Partial
Unraveling of Environmental Law” (1994) 27 Loy LA LR 1121 at
1122.
81
“The equilibrium paradigm was flawed from the start, but until
recently many scientists and policy makers believed the problem was
the lack of necessary data rather than the paradigm itself. The
alternative paradigm was neither clearly articulated nor widely
accepted until the 1980s. It has, however, with pockets of resistance,
been replaced with the more hard-edged probabilistic theories of
nonequilibrium.” Tarlock, ibid at 1128-29.
82
There is also evidence that ecosystems may be naturally chaotic,
which is not the same thing as nonequilibrium. See Alan Hastings et al,
“Chaos in Ecology: Is Mother Nature a Strange Attractor?” (1993) 24
Ann Rev Ecology Sys 1 at 4.
83
“[A]n ecosystem is a thermodynamically open, far from equilibrium
system.” Eugene P Odum, “Great Ideas for Ecology for the 1990s”
(1992) 42 Bioscience 542. (Odum is one of the original architects of the
equilibrium model.)
84
Tarlock, supra note 80 at 1129, citing DL Urban et al, “Landscape
Ecology” (1987) 37 Bioscience 119.
85
Allaby, supra note 79.
86
Under the equilibrium paradigm, fully developed ecosystems were
thought to be essentially stable systems existing in a steady state unless
disturbed by outside forces, and to have the following characteristics:
“(1) to be essentially closed, (2) to be self-regulating, (3) to possess
stable point or stable cycle equilibria, (4) to have deterministic
dynamics, (5) to be essentially free of disturbance, and (6) to be
independent of human influences.” S. Pickett, J. Kolasa & C. Jones,
Ecological Understanding (Academic Press, 1994) at 159. The
equilibrium paradigm reflected the notion of the “balance of nature”, in
which the natural world was a fully-formed, stable entity except when
upset by human action.
87
“Ecosystems do not have absolute or permanent boundaries, though
we draw lines around different kinds of places for our convenience.”
Hal Salwasser, “Ecosystem Management: A New Perspective for
National Forests and Grasslands” in William R Burch et al, eds,
Ecosystem Management: Adaptive Strategies for Natural Resources
Organizations in the Twenty-First Century (Taylor Francis, 1999) 85 at
86, cited by Bradley Karkkainen, “Collaborative Ecosystem
124
Notes
Governance: Scale, Complexity, and Dynamism” (2002) 21 Va Envtl
LJ 190 at 207, n 43.
88
Jacobs, supra note 38 at 137.
89
Barry Commoner, The Closing Circle: Nature, Man, and Technology
(Random House, 1971) at 33.
90
In his Introduction to Michael Rothchild’s “Economy as Ecosystem”
in The Libertarian Reader, supra note 53 at 243, David Boaz relates
that the economist William A. Niskanen, former member of the
President’s Council of Economic Advisors and Chairman of the Cato
Institute has three portraits on his wall, one of Isaac Newton, one of
Adam Smith, and one of Charles Darwin, and underneath each portrait
is the inscription “Order without Direction”.
91
Tamanaha, supra note 1 at 484: “The U.S. legal system ... is in
imminent danger of becoming less of a system of law. ... the rule-bound
character of the system is reduced when achieving purposes or focusing
on ends becomes the paramount goal of judges in their decisions. ...a
legal system requires that judges render decisions according to the
applicable rules, not according to their own political views or
preferences”.
92
Such is the stuff of litigation and law school exams.
93
FA Hayek, The Constitution of Liberty (University of Chicago Press,
1960) at 153.
94
D Mullan, Administrative Law (Irwin Law, 2001) at 135.
95
Ronald Dworkin, “Hard Cases” (1975) 88 Harv LR 1057 at 1064.
96
Ronald Dworkin, Taking Rights Seriously (Harvard University Press
1977) at 294.
97
Although neither does Dworkin offer a coherent, objective, nonmoral standard on which to base the law.
98
Ronald Dworkin, Law’s Empire (Harvard University Press, 1986) at
97.
99
“Utopians talk about a time when “all property was common”. They
are not using the word “property” in today’s sense. They refer to a time
when no one held property in things and everyone was free to make use
of them. … Property limits the exercise of liberty by non-holders.” B
Welling, Property in Things in the Common Law System (Scribblers
Publishing, 1996) at 18-19.
100
Ibid at 6-7.
101
For example, Freyfogle states, “The private ownership of land has
become problematic for many people who care about nature and who
worry that we are not living responsibly in it and on it. Too often
landowners act in ways that are not ecologically sound. Too often they
think only of themselves and the short run and fail to consider the
larger community of life and future generations. And private property –
Notes
125
that is, the legal power that owners possess – seems to shield
landowners from meaningful challenge to what they do.” E Freyfogle,
“Taking Property Seriously” in D Grinlinton and P Taylor eds,
Property Rights and Sustainability: The Evolution of Property Rights to
Meet Ecological Challenges (Martinus Nijhoff Publishers, 2011) 43 at
43.
102
The source of confusion may lie in the failure to distinguish between
property and things. In common parlance, things are often referred to as
“property”, as in “The car is my property” or “The property was
damaged on July 5,” but this usage is not precise and is technically
incorrect. Things are not property, and property is not a thing. Property
is a legal right. It restricts the behaviour of other people towards the
thing to which the right relates. Consider a situation where a house has
been leased. The owner/lessor holds ownership (fee simple) in the
house, and the lessee holds possession (occupation) of the house. The
lessee, as possessor and occupier, holds the right to exclude others from
the house. That right can be enforced against the whole world,
including the owner. The owner, during the period of the lease, does
not have the right to exclude the lessee from the property. Because the
property rights are divided between the parties, it makes little sense to
say that the house is “the property” of either the owner or the lessee. In
fact, the owner holds some of the property rights and the lessee holds
others. See Welling, supra note 99 at 8-14.
103
Tamanaha, supra note 1 at 469. “Although legal theorists have put
forth compelling arguments that rule-bound judging and a focus on
purposes and ends cannot in principle be combined, this combination
has in fact taken place in the U.S. legal culture.” Ibid at 489 (emphasis
in original).
104
After a nuclear holocaust, unless all life on the planet was destroyed,
those organisms that survived and evolved would interact, and
ecosystems would exist. The operational principles of those new
systems would be the same as in the old ones: individual organisms
would compete for scarce resources in a quest to survive and
reproduce.
105
“The liberal argument … is based on the conviction that, where
effective competition can be created, it is a better way of guiding
individual efforts than any other. It does not deny, but even
emphasizes, that, in order that competition should work beneficially, a
carefully thought-out legal framework is required and that neither the
existing nor the past legal rules are free from grave defects. Nor does it
deny that, where it is impossible to create the conditions necessary to
make competition effective, we must resort to other methods of guiding
economic activity … And it regards competition as superior not only
126
Notes
because it is in most circumstances the most efficient method known
but even more because it is the only method by which our activities can
be adjusted to each other without coercive or arbitrary intervention of
authority.” Hayek, supra note 13 at 36.
106
Epstein, supra note 56 at 91-92
107
For an effective, cogent analysis of property rights, see Welling,
supra note 99.
108
“[The autonomy principle, or the rule of self-ownership] establishes
at very low cost a rule of ownership over all labour – and removes the
need for any ministry of health to make decisions on matters of life and
death, or any ministry of labour to assign people to particular tasks. In
all affairs, decentralization of ownership necessarily follows from the
principle of self-ownership. Its functional roots are so powerful that it
should be treated as a moral imperative, even though the most powerful
justification for the rule is empirical, not deductive.” Epstein, supra
note 56 at 59.
109
John Locke, Second Treatise of Government (1690) at para 27,
quoted by Epstein, ibid at 54.
110
“(T)he answers to the old questions – What is the character of nature
undisturbed? What is the influence of nature on human beings? What
is the influence of human beings on nature? – can no longer be viewed
as distinct from one another. Life and the environment are one thing,
not two, and people, as all life, are immersed in the one system.” D
Botkin, Discordant Harmonies: A New Ecology for the Twenty-First
Century (Oxford U Press 1990) at 188; see also JB Ruhl, “Working
Both (Positivist) Ends Toward a New (Pragmatist) Middle in
Environmental Law”(2000) 68 Geo Wash LR 522 at 531-32; see
generally JB Wiener, “Beyond the Balance of Nature” (1996) 7 Duke
Envtl L & Pol’y F 1.
111
Stewart Pickett, Jurek Kolasa & Clive Jones, Ecological
Understanding: The Nature of Theory and the Theory of Nature
(Academic Press, 1994) at 161.
112
Thomas Homer-Dixon, The Ingenuity Gap (New York: Alfred P
Knopf, 2000) at 132. See also Hal Salwasser, “Every ecosystem is a
subset of a larger system. Forests are ecosystems, as are ponds, lakes,
rotting logs, rangelands, and estuaries. The Northern Rockies is an
ecosystem. So is North America. So is the planet.” Salwasser, supra
note 87.
113
For example, would this approach allow the elimination of a species
from a small ecosystem on the basis that a larger ecosystem is not
affected? The answer is, it depends. In the case of the tidal pool,
destruction of a single pool would eliminate the organisms that lived in
the pool. But the populations of such organisms along the marine
Notes
127
coastal system would not be affected in any way – their equilibrium
levels would remain constant over time, and the particular organisms
eliminated from the tidal pool would be replaced. However, in a
different scenario, the elimination of a species from one system would
amount to a permanent change to the larger system as well. For
example, consider the destruction of the habitat of a community of
spotted owls in a coastal rainforest. Assume that developers sought to
justify that action on the basis that it would not affect the continental
ecosystem. Their justification would be inadequate unless, like the tidal
pool scenario, the equilibrium population of spotted owls was restored
by ecosystem resources outside the coastal rainforest but within the
continental system, and if the temporary loss of the owls had only
temporary effects upon other species and ecosystem elements.
Sometimes, a permanent change within a small system is also a small
permanent change within a larger system, which is not permitted under
the test.
114
“The basic mechanism of contract is very simple, powerful, and
universal. It essentially involves your surrendering something that you
value in exchange for something else that you value even more … this
one simple idea of gains through trade is capable of infinite repetition.
What is purchased in one transaction can be reworked, repackaged, and
resold in another transaction. As long as the mutual gain condition is
satisfied at every stage, there is no reason to place any artificial
limitations on the number of times people can rely on this one rule.
One good idea beats a thousand bad ones.” Epstein, supra note 56 at
72.
115
The policy rationalization for granting patents is that they create
incentives to invent new products. According to this argument,
companies would be less likely to invest time and money into research
and development without the potential reward of a monopoly. In this
sense, patent regimes serve a similar function as tax incentives. They
are designed to influence commercial behaviour towards the ends that
the state considers desirable. Patent regimes are instrumentalist laws
that distort the operation of markets.
116
Milton Friedman, Capitalism and Freedom (University of Chicago
Press, 2009) at 129. Milton maintains that without government
assistance, private monopolies achieved through collusion are unstable
and short-lived. “The establishment of the cartel, by raising prices,
makes it more profitable for outsiders to enter the industry. Moreover,
since the higher price can be established only by the participants'
restricting their output below the level that they would like to produce
at the fixed price, there is an incentive for each one separately to
undercut the price in order to expand output. Each one, of course, hopes
128
Notes
that the others will abide by the agreement. It takes only one or at most
a few "chiselers" - who are indeed public benefactors - to break the
cartel. In the absence of government assistance in enforcing the cartel,
they are almost sure to succeed fairly promptly.” Ibid at 131.
117
According to economists, a market will be “perfectly competitive” if
it has many buyers and sellers of a common good, none of whom are in
a position to control supply or price, meaning that competitors have
comparable bargaining power and the market is not controlled by
monopoly or oligopoly; if all parties have complete information about
what is available in the market; if there are no transaction costs; and if
there are low barriers to entering the market as a buyer or a seller: M
Trebilcock et al, The Law and Economics of Canadian Competition
Policy (University of Toronto Press, 2002) 46-47; N Gregory Manikew
et al, Principles of Microeconomics, 2d ed (Nelson, 2002) at 66-67;
Jeffrey Church and Roger Ware, Industrial Organization: A Strategic
Approach (Irwin McGraw-Hill, 2000) at 21; Roger Miller and Nancy
Clegg, Economics Today: The Micro View (Addison-Wesley, 1999) at
265. Perfectly competitive markets are rare; indeed, they may be only
theoretical.
118
William Gairdner, The Trouble with Canada – Still! (Key Porter
Books, 2010) 17.
119
“[T]he very men who are most anxious to plan society [are] the most
dangerous if they were allowed to do so – and the most intolerant of the
planning of others. From the saintly and single-minded idealist to the
fanatic is often but a step. Though it is the resentment of the frustrated
specialist which gives the demand for planning its strongest impetus,
there could hardly be a more unbearable – and more irrational – world
than one in which the most eminent specialists in each field were
allowed to proceed unchecked with the realization of their ideals.”
Hayek, supra note 13 at 55.
120
John Stuart Mill, On Liberty, in Joel Fineberg and Hyman Gross,
eds, Justice: Selected Readings (Dickenson Publishing, 1977) at 198.
121
For example, the South African Constitution provides a right to
housing, health care, food, water, and social security: South African
Constitution, 1996, art 27. In October 2009, South Africa’s
Constitutional Court decided Mazibuko v City of Johannesburg, 2009
(3) SA 592 (CC) (S Afr). The applicants were five residents of Phiri in
Soweto. The City of Johannesburg, one of the respondents, had
established a policy of providing twenty-five liters of water per person,
per day for free. The applicants maintained that the policy offended
Section 27 of the Constitution. The trial court agreed, concluding that
fifty liters of water was the proper amount. The appellate court reduced
this figure to forty-two liters. On final appeal, the Constitutional Court
Notes
129
found that Section 27 did not require more free water than the city’s
policy provided, and observed that courts were ill-equipped to make
such decisions. Ibid at para 62.
122
Frank B Cross, “The Error of Positive Rights” (2001) 48 UCLA LR
857 at 859.
123
See Mosetlhanyane v Att’y Gen. of Bots., CACLB-074-10 (Bots),
Court of Appeal, Jan 27, 2011. In Mosetlhanyane the Botswana Court
of Civil Appeals recognized the right of Bushmen to use an old
borehole to extract water for domestic purposes, overturning a
government prohibition. The case is likely to be interpreted as an
endorsement of the concept of a right to water, but that would not be an
accurate reading of the judgment. Instead, the court essentially found
that the Bushmen had the right not to be interfered with on the lands
that they rightfully occupied. Their right to use the borehole did not
consist of a right to be provided with water, or to have the government
cover the expense of using the borehole. The court stated: “[T]he
appellants as lawful occupiers of the land in question merely seek, at
their own expense, permission to use water from a discarded existing
borehole for domestic purposes, something they had admittedly been
doing before. Indeed, it is not their case that they should be granted a
water right to abstract water ‘at will, in unlimited quantities, from an
unspecified number of boreholes.’ . . .All that they need . . . is
permission to use the existing or an alternative borehole at their own
expense and not Government’s expense. . . . Lawful occupiers of land
such as the appellants must be able to get underground water for
domestic purposes, otherwise their occupation would be rendered
meaningless.” Ibid at para 16.
124
See generally Cass Sunstein, “Against Positive Rights” (1993) 2 E
Eur Const Rev 35.
125
“Even though talent, circumstance, and luck play a role in human
behaviour, we all are spared an enormous administrative burden if we
mutually renounce any claim to these assets of others. A rule of selfownership, far better than any of its alternatives, allows us to move on
with the business of life. A rule of self-ownership selects the single
person to be the owner of each person’s natural talent, and picks that
person who in the vast majority of cases tends to value those assets the
most: each obtains control over his or her own body. At least for adults
(and there are, of course, qualifications for children), the rule offers the
shortest path from initial entitlement to productive human activity.”
Epstein, supra note 56 at 57.
126
So reasoned Justice Potter Stewart of the United States Supreme
Court in Jacobellis v Ohio, 378 US 184 (1964), declining to identify
the parameters of obscenity. The exact quote is: “I shall not today
130
Notes
attempt to define the kinds of material I understand to be embraced
within that shorthand description [“hard-core pornography”]; and
perhaps I could never succeed in intelligently doing so. But I know it
when I see it, and the motion picture involved in this case is not that.”
Justice Stewart’s judgment was a concurring opinion in the case, in
which the court addressed the question whether the motion picture The
Lovers was obscene and justifiably subject to censorship.
127
“As many have observed, environmental law has substantially
influenced other, established areas of law such as administrative law,
international law, property, torts, and water law as well as more remote
subjects such as corporations, securities regulation, and intellectual
property. However, when one sums up the cases, statutes, and
administrative regulations that make up the core of what most people
consider environmental law, one is hard pressed to reduce them to a set
of distinctive, fundamental principles, let alone rules that can be
applied to a wide range of current and future issues, as one can do in
other areas of “real law”.” AD Tarlock, “Is There a There There in
Environmental Law?” (2004) 19 J Land Use & Envt L 213 at 217-18.
128
Ibid at 219; “[A]n effective and long-lasting environmental law
cannot be constructed around a series of abstract substantive principles.
There is a reason that no Restatement (First) of Environmental Law
exists or is in process. The candidate suite of principles such as
advance environmental impact assessment, polluter pays, precaution,
and sustainable development are useful starting points but they can
only serve as guideposts to structure a dynamic, but inevitably ad hoc,
decision making process.”Ibid (citing Beanal v Freeport-McMoRan,
Inc., 969 F Supp 362 (ED La, 1997), aff’d, 197 F 3d 161 (5th Cir
1999)).
129
See JB Ruhl, “The Pardy-Ruhl Dialogue on Ecosystem
Management, Part IV: Narrowing and Sharpening the Questions”
(2007) 24 Pace Envtl LR 25; JB Ruhl, “The Myth of What is Inevitable
Under Ecosystem Management: A Response to Pardy” (2004) 21 Pace
Envtl LR 315.
130
JB Ruhl, “Ecosystem Management, the ESA, and the Seven Degrees
of Relevance” (2000) 14 Nat Res & Env’t 156 at 157; Rebecca W
Thomson, “Ecosystem Management: Great Idea, But What Is It, Will
It Work and Who Will Pay” (1995) 9 Nat Res & Env’t 42; Robert B
Keiter, “Beyond the Boundary Line: Constructing a Law of Ecosystem
Management” (1994) 65 University of Colo L Rev 293; Stephen Owen,
“Participation and Sustainability: The Imperatives of Resource and
Environmental Management” in Steven Kennett, ed Law and Process
in Environmental Management:
Essays from the Sixth CIRL
Conference on Natural Resources Law (Canadian Institute of
Notes
131
Resources Law, 1993); Neil Gunningham and Darren Sinclair, “New
Generation Environmental Policy: Environmental Management
Systems and Regulatory Reform” (1998) 22 Melb University LR 592;
Hanna Cortner and Margaret Moote, The Politics of Ecosystem
Management (Island Press, 1999) at 19-27. Approval of the managerial
approach has been broad, but not unanimous. Twenty-five years ago
Wolfgang Sachs said of the environmental movement, “what once had
begun as a call for new public virtues is now about to be turned into a
call for a new set of managerial strategies.” Quoted in David Cayley,
The Age of Ecology (Toronto: Canadian Broad Corp Transcript, 1990)
at 1. Cayley himself notes, “Having thought myself for twenty years an
environmentalist, I now found myself on the sidelines, muttering, like
Eliot’s J. Alfred Prufrock, ‘That’s not what I meant at all. That’s not it
at all.’” Ibid. For an example of the unresolved tension between
environmental conservation and the mandates of environmental
management, see Deborah Curran & Michael M’Gonigle, “Aboriginal
Forestry: Community Management as Opportunity and Imperative”
(1999) 37 Osgoode Hall LJ 711.
131
For example, the purpose of The Environment Act of Manitoba is “to
develop and maintain an environmental protection and management
system…which will ensure that the environment is maintained in such
a manner as to sustain a high quality of life, including social and
economic development, recreation and leisure for this and future
generations….” The Environment Act, CCSM c E125, s 1(1).
132
Keiter supra note 130; see also Ruhl supra note 130 and Thomson
supra note 130.
133
Ruhl, ibid at 157.
134
Botkin, supra note 110 at 191, 193; see also S Levin, Fragile
Dominion: Complexity and the Commons (Basic Books, 1999) at 15:
“To manage the Earth’s systems and ensure our survival, we have to
harness the natural forces that organize the biosphere rather than
fruitlessly try to resist them. The biosphere is a complex adaptive
system whose essential structure has emerged in large part from
adaptive changes that were mediated at local levels rather than at the
level of the whole system. Humanity’s program must therefore be to
understand those changes, the forces that have shaped them, and their
consequences at the larger level, and then to put that knowledge to
work in determining where the pressure points are for effecting changes
that will preserve critical ecosystem services.”
135
“Ecosystem management ... views nature with some reverence and
respect for the awesome complexity with which its components are
interwoven. Protection of ecosystem attributes and functions,
132
Notes
particularly biodiversity, is critical.” Cortner and Moote, supra note
130 at 37.
136
Adaptive management is “a methodology that relies on building
models of ecosystem dynamics and then use[s] rigorous testing,
monitoring, and evaluation of policy implementations to provide the
feedback necessary to promote long-term ecosystem integrity.” JB
Ruhl, “The Pardy-Ruhl Dialogue on Ecosystem Management, Part IV:
Narrowing and Sharpening the Questions” (2007) 24 Pace Envtl LR 25
at 28-29.
137
T Homer-Dixon, Professor, University of Toronto, Local Food
Systems & Social Resilience, presentation at the “Food Down the Road
Summit” in Kingston, Ontario (Nov 2, 2007) (on file with author); see
generally T Homer-Dixon, The Upside of Down: Catastrophe,
Creativity, and the Renewal of Civilization (Island Press, 2007),
postulating that because of the diversity of stresses existing in modern
society, conventional management, with its highly compartmentalized
approach to problem-solving, is not adequate to solve the world’s
complex issues.
138
Over 20 years ago, Bill Scheuerman described this state of affairs:
“In every capitalist welfare state law takes an increasingly amorphous
and indeterminate form as legal standards like ‘in the public interest’ or
‘in good faith’ incompatible with classical liberal conceptions of the
legal norm proliferate. Everywhere a troublesome conflation of
traditional parliamentary rulemaking with situation-specific
administrative decrees results; everywhere bureaucratic and judicial
discretion grows. If a minimal demand of the rule-of-law ideal was
always that state action should take a predictable form, contemporary
democracies do poorly living up to this standard.” Bill Scheuerman,
“The Rule of Law and the Welfare State: Towards a New Synthesis”
(1994) 22 Politics & Soc’y 195.
139
“What was once generally justified only in time of war or other
emergencies has become increasingly common: the enactment of
legislation with very little opportunity for parliamentary debate and
with both the principles and the detail left initially for the executive to
work out and also subject to change at the executive’s whim.” D
Mullan, Administrative Law (Irwin Law, 2001) at 135.
140
Under section 3 of the Ontario Environmental Assessment Act, RSO
1990, c E18, the Act applies to “(a) enterprises or activities ... by or on
behalf of Her Majesty in right of Ontario or by a public body ... or by a
municipality... ; [and] (b) major commercial or business enterprises ...
designated by the regulations ...” unless the enterprise or activity is
exempted. The exemptions in the regulations are numerous.
Notes
141
133
Under section 6.4(2) of the EAA, “Any person may comment in
writing on the undertaking or on the environmental assessment to the
Ministry and, if the person wishes the comments to be considered
during the preparation of the Ministry review, shall submit the
comments by the prescribed deadline.”
142
Under section 7(1), “The Ministry shall prepare a review of the
environmental assessment and shall take into account any comments
received from members of the public ...”
143
For example, section 2 of the EAA defines the purpose of the Act as
“... the betterment of the people of the whole or any part of Ontario by
providing for the protection, conservation and wise management in
Ontario of the environment.”
144
The purpose section of the Canadian Environmental Assessment
Act, 2012 uses different words but leads to a similar conclusion. In
section 4(h), one of the purposes of the Act is “to encourage federal
authorities to take actions that promote sustainable development in
order to achieve or maintain a healthy environment and a healthy
economy.” Sustainable development, of course, is among the vaguest
of environmental ideas, sufficiently malleable to accommodate
virtually any set of priorities. It provides a mandate to decision-makers
to craft what they judge to be in the public interest, in whatever
combination of environmental, economic and social consideration
seems appropriate in the context of the proposal.
145
“Human needs and a healthy environment are not opposing claims
that must be balanced; instead they are inexorably linked by chains of
cause and effect … Our strongest arguments for a healthy environment
are selfish: we want it for ourselves, not for threatened species like
snail darters, spotted owls, and Furbish louseworts.” Jared Diamond,
“The Last Americans: Environmental Collapse and the End of
Civilization” Harper’s (June 2003) 43 at 44.
146
For example, under section 9(2) of the Ontario EAA, the Minister of
the Environment need only consider the following matters when
deciding an application: The purpose of the Act, the approved terms of
reference for the EA, the EA itself, the Ministry review of the
environmental assessment, the comments received from the public,
mediators’ reports, if any, and such other matters as the Minister
considers relevant.
147
“The simplest rules … are those in which the answer to a single
question of fact determines the legal outcome. Age requirements for
voting or holding public office are usually offered as the simplest of
simple rules because a single answer to an obvious question establishes
legal rights and duties. On the opposite side of the ledger are those
rules that are ever so much more common today: in order to decide
134
Notes
whether a given product has a defective design, it is necessary to
review a list of six, ten, or fifteen factors, all of which are relevant to
the decision but none of which is decisive. In each case, both sides to
the litigation are forced to play a game of “edges” in an inquiry that is
structured to make it impossible to have dispositive answers to any
question. Litigants therefore must seek to milk each factor for all that it
is worth, and must recognize that an impressive victory scored on
factor 4 could be wiped out by a calamitous defeat on factor 7. In
essence, a question that necessarily has a yes/no answer – is the
defendant liable to the plaintiff – is not governed by some simple on/off
switch, but by a massive, costly, and uncertain inquiry.” Epstein, supra
note 56 at 25.
148
“In addition to producing economically valuable goods (e.g.,
lumber, bananas, fish, etc.), ecosystems are essential for providing
services that are vital to individual and community well-being. The
term that captures this principle, ‘ecosystem services,’ refers to ‘a wide
range of conditions and processes through which natural ecosystems,
and the species that are part of them, help sustain and fulfill human
life.’” K Hirokawa, ‘Sustaining Ecosystem Services Through Local
Environmental Law’ (2011) 28 Pace Envtl L Rev 760 at 760, quoting G
Daily et al., “Ecosystem Services: Benefits Supplied to Human
Societies by Natural Ecosystems” (1997) 2 Issues in Ecology 1 at 2;
Hirokawa also quotes Costanza et al on the same point: “Ecosystem
functions refer variously to the habitat, biological or system properties
or processes of ecosystems. Ecosystem goods (such as food) and
services (such as waste assimilation) represent the benefits human
populations derive, directly or indirectly, from ecosystem functions.”
Hirokawa, ibid, quoting R Costanza et al., ‘The Value of the World’s
Ecosystem Services and Natural Capital’ (1997) 387 Nature 253 at 253.
The Millennium Ecosystem Assessment, produced by the United
Nations in 2005, adopted an equally broad definition: “Ecosystem
services are the benefits people obtain from ecosystems. These include
provisioning services such as food and water; regulating services such
as regulation of floods, drought, land degradation, and disease;
supporting services such as soil formation and nutrient cycling; and
cultural services such as recreational, spiritual, religious and other
nonmaterial benefits.” Millennium Ecosystem Assessment, Ecosystems
and Human Well-being: Current State and Trends Assessment, Vol 1
(Island Press, 2005) 26.
149
The list of what qualifies as an ecosystem service varies. For
example, JB Ruhl lists the services provided by aquatic resources as
“groundwater recharge, storm and flood mitigation, sediment control,
water purification, climate regulation, water supply, and recreation.” JB
Notes
135
Ruhl, ‘Ecosystem Services and the Clean Water Act: Strategies for
Fitting New Science into Old Law’ (2010) 40 Environmental Law 1381
at 1382-1383. Also see A Rosenthal, K Lyon and E McKenzie,
‘Ecosystem Services’ in R Craig et al, eds, Ecosystem Management and
Sustainability (Berkshire Publishing, 2012) 112.
150
“A way to think about this more practically is as three suites of
services. One might think of translocation processes – the natural
service of moving things from one place to another. This would include
pollination (moving pollen from one flower to another) and seed
dispersal. Another set includes stabilizing processes such as natural
pest control (how most agricultural pests are controlled); climate
regulation through carbon sequestration (vegetation sucking up CO2);
mitigating droughts (such as retaining water and metering the flow over
time); and flood control (coastal wetlands are great at buffering floods).
The third category is what you might call cycling or filtration
processes. That would include things such as water purification (what
was going on in the Catskills), waste degradation (breaking down waste
products), and renewal of soil fertility.” J Salzman, ‘What is the
Emperor Wearing?: The Secret Lives of Ecosystem Services (2011) 28
Pace Envtl L Rev 591 at 593.
151
“… ecosystem services have relevance only to the extent human
populations benefit from them. They are purely anthropocentric.” JB
Ruhl, S Draft and C Lant, The Law and Policy of Ecosystem Services
(Island Press 2007) 15 (emphasis in original). For a review of Ruhl,
Kraft and Lant’s book, see B Pardy, “Goods, Services and Systems”
(2008) 46 Osgoode Hall LJ 445.
152
“Gretchen Daily, one of the leading thinkers in this area, has defined
ecosystem services as the conditions and processes through which
natural systems make up, sustain and fulfill human life.” Salzman,
supra note 150 at 593.
153
This approach emphasizes new rules and regulations, planning,
adaptive management and an expanded role for public authorities. For
example, see JB Ruhl, ‘Ecosystem Services and the Clean Water Act:
Strategies for Fitting New Science into Old Law’ (2010) 40 J Env Law
1381; Hirokawa, supra note 148; Ruhl, Kraft and Lant, supra note 151.
154
“Payments for Ecosystem Services” or PES consist of public funds
paid to parties with property rights over ES, to compensate them for the
opportunities foregone by sparing them instead of using the land for a
more profitable purpose. For example, see Salzman, supra note 150 at
600-604; K Bennett, “Additionality: The Next Step for Ecosystem
Service Markets” (2010) 20 Duke Environmental Law & Policy Forum
417; T Greiber, ed, Payments for Ecosystem Services: Legal and
Institutional Frameworks (IUCN, 2009).
136
155
Notes
See L Wayburn and A Chiono, “The Role of Federal Policy in
Establishing Ecosystem Service Markets” (2010) 20 Duke
Environmental Law & Policy Forum 385; G Achterman and R Mauger,
“The State and Regional Role in Developing Ecosystem Service
Markets” (2010) 20 Duke Environmental Law & Policy Forum 291; C
Reid, “Between Priceless and Worthless: Challenges in Using Market
Mechanisms for Conserving Biodiversity” (March 2013) Transnational
Environmental Law 1. The most frequently cited example of an ES
market is the cap and trade model for limiting greenhouse gas
emissions: government allocates caps, and then companies buy and sell
emission allowances depending on whether their emissions are above
or below their cap.
156
See Salzman, supra note 150 at 595.
157
“It is tempting to overstate the case for ecosystem services, to try to
find them everywhere simply because anywhere is in one or another
ecosystem. But it is important not to confuse ecosystem functions,
which are ubiquitous, with ecosystem services, which are the
consequence of only some ecosystem functions.” (Emphasis in
original.) Ruhl, Kraft and Lant, supra note 151 at 15.
158
In particular, those parts of oceans located in international waters.
159
Ruhl, Kraft and Lant, supra note 151 at 72-76.
160
Ibid at 74.
161
Free rider: “One who obtains an economic benefit at another’s
expense without contributing to it.” B Garner, ed, Black’s Law
Dictionary (West Group, 1999) 676; “A person or organization who
benefits from a public good but neither provides it nor contributes to
the cost of collective provision.” J Black, N Hashimzade, and G Myles,
A Dictionary of Economics 4th ed (Oxford University Press, 2012).
162
R Costanza et al, “The value of the world’s ecosystem services and
natural capital” (1997) 387 Nature 253 at 253. The authors noted that
global GNP at this time was approximately eighteen trillion dollars
(US) per year.
163
R Costanza et al., “Changes in the Global Value of Ecosystem
Services” (2014) 26 Global Environmental Change 152.
164
It may make sense to fix a value for ecosystem services that are not
subject to market forces where a court must calculate damages owed by
a defendant who has damaged the plaintiff’s property, particularly if the
plaintiff is a public entity and the damage is to a public or common
resource. Imagine that a wetland on land owned by A has been ravaged
by a fire negligently caused by B. If B is held liable for A’s losses, it
must be determined what damages are payable from B to A. The
question arises: what was the wetland worth? Different methods may
be used by courts to value loss, including diminution in market value,
Notes
137
cost of restoration, loss of income or profit, or loss of use value or nonuse value. See M Olszynski, “Environmental Damages after the Federal
Environmental Enforcement Act: Bringing Ecosystem Services to
Canadian Environmental Law?” (2012) 50 Osgoode Hall LJ 129 at 131
and 143.
165
Ruhl, Kraft and Lant, supra note 151 at 11.
166
As Olszynski states, “In its most basic terms, environmental
valuation is economic valuation—“the valuation in monetary terms of
items that people might care for”—applied to the natural world. The
goal is to determine the utility, or satisfaction, that individuals derive
from the environment. It is not to discern the objective value of
ecosystems with a view towards sustainability or intergenerational
equity, although the existence of such concerns by individuals can and
does affect this exercise. In other words, environmental valuation is
positivistic rather than normative, asking what value people place on
the environment in light of competing preferences as opposed to how
much value they perhaps should place.” Olszynski, supra note 164 at
142-143 (emphasis in original).
167
“A cost … arising from any activity which does not accrue to the
person or organization carrying out the activity.” Black, Hashimzade,
and Myles, supra note 161.
168
“The prices paid for commodities in a typical market economy do
not include the social costs of many types of environmental damage.
These externalities have been discussed in the economic literature for
over fifty years. Ignoring these costs leads to market prices that are
lower than social prices, and as a result, levels of consumption are too
high from a social perspective.” T Mount, “Redirecting Energy Policy
in the USA to Address Global Warming” in M Dore and T Mount, eds,
Global Environmental Economics: Equity and the Limits to Markets
(Blackwell Publishers, 1999) 301 at 304.
169
See Salzman, supra note 150 at 595.
170
Ibid at 603.
171
For example, see SA Shepard, “A Negative Externality by Any
Other Name: Using Emissions Caps as Models for Constraining DeadWeight Costs of Regulation” (2014) 66 Administrative Law Review
345; T Schoenbaum and R Rosenberg, Environmental Policy Law 3rd
ed (Foundation Press, 1996) at 50-58.