Toward an Environmental Law of Essential Goods: A Philosophical and Legal Justification For ‘Ecological Contract'

Introduction

In the 18^th Century we developed the tools of scientific method to free us from superstition and the fear of nature. In the 19^th Century humanity began to more fully “discover” nature by systematically using this scientific method to study, categorize, schematize, and decipher the biological, chemical, and physical dimensions of the natural world, how it worked, and what our place was within it. During the 20^th Century, we used our scientific skills to conquer nature to an unprecedented extent. Feeling the transcendence of our technological powers we sought to satisfy our wants and maximize our wealth at nature's expense and we created ourselves outside of, and superior to, the natural world around us. All along we have treated nature merely as a means to our ends, but if this chronology is reasonable, then it falls to us in the 21^st Century to make it a time for nature’s restoration, recognizing its essential role not only in our humanity, but in its own continued evolution. But how might this transition be philosophically justified and legally operationalized?

I wish to assert that one path to such a transition is the proposition that Nature is not merely an instrumental or elective good, but essential to us as moral agents whose capacity for freedom or intrinsic value, depends upon the functional integrity of natural systems (Gillroy, 2000, pp. 179-196). This status does not now exist in law, and with the current foundation upon which environmental policy is made it will never gain this status. If environmental policy and law is ever to reflect the essential value of nature we cannot depend on the bottom-up creation of social values and market conventions that have, to date, determined nature to be of predominantly elective-economic value to humanity. Instead, we need top down legal codification to create an explicit Ecological Contract granting nature standing in law and an equal baseline (Gillroy, 2000, pp. 276-286) status in our policy deliberations in recognition of its necessity to us (Stone, 1988).

The transition to this new status contract, however, will require that we rethink our philosophical predispositions about what environmental law is and how it should be used. With the possibility that nature is an essential as well as an elective good we can no longer be satisfied with individual preference, markets and their common law background conditions being the default drivers for environmental policy and law. It is also the case that, with the consideration of essential status, we can no longer relegate ‘command and control’ regulation of markets to the margins, after the introduction of products into the environment and only when excess risk or significant harm is proven by regulatory agencies (Gillroy, 1999). While there will be circumstances where the environment can be treated as an elective good, the introduction of essential status requires that we be able to make judgments about what the overall treatment of nature, as an essential good, requires of the law. If nature can be essential as well as elective in human choice, and be applied through public law that considers both the individual agent (person or ecosystem) as well as the persistence of the collective good, then we need a more complex definition of environmental law. This definition should take advantage of the multiple sources of law to provide a lexicon of policy allocation mechanisms with which to approach and deal with the requirements of the distinct facets of this new philosophical-legal status and its complexity.

Specifically, instead of a ‘one size fits all’ policy of preference markets as the predominant approach to our natural world within the extraction, manufacturing, and disposal phases of the resource-to-recovery process, (Gillroy, 2000, pp. 289-292) a policy dichotomy between essential and elective goods added to an existing distinction between public and private law, gives us four combinations of philosophical status and legal sources with which to approach the various contingencies inherent in humanity’s relationship to the natural world. Here, specific sources of law will provide distinct allocation mechanisms with different qualities that will be able to compete with the common law of markets to both conserve and preserve environmental and natural resources.