This book is written by Bruce Pardy a young and brilliant professor of Law at Queen’s University (Kingston, Canada) [1] and available only on Internet. I suggest you read its 137 pages to discover a new perspective on the respective role of government, markets and ecosystem for environmental conservation.
The major question is whether the law imposes the tyranny of arbitrary rules upon its citizen or are there non-arbitrary, objective standards that can govern the exercise of state power. Today environmental law has become a hands-on phenomenon where agency discretion governs, ad-hoc decisions are common place and the instrumentalist approach a common practice. Law is merely a tool with no inherent content of his own . “An empty vessel” that can be filled by whoever is politically or legally powerful enough to fill it ( crony capitalism or green militancy)
Pardy refers to Aquina’s natural law which could act as a lighthouse and limit conflicts.
This book opens a discussion about common law and European civil law approaches and could limit the “command and control” which is costly, and inefficient not to speak of bureaucratic tyranny.
Pardy’s conclusion is summed up in the 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
- 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.
- Ecosystems contain their own immutable logic: competition for scarce resources leads to natural selection, 110 Ecolawgic 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.
- 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.
- 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.
- 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.
- 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.
- 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 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.
- 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.
- 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.
I do think this is a great book to be read and commented by environmental lawyers and bureaucrats alike. A good introduction to Common Law theory
Max Falque
[1] It happens that I was at Queen’s in 1959-1960….what a small world !