(5) Environmental Law, Policies & Protection




Accounting for the authority of science

Having asserted the influence of science on law making, and its limitations in the environmental field, we should try to account for the authority of science. It is well known that the scientific paradigm has roots that are deep in history, and steeped in religion.

But the onset of the Enlightenment is considered to have most powerfully and persistently shaped attitudes to the natural world, 36 so that a ‘domination of nature’ thesis prevails. In the following, Holder explains the ‘radical lawyer’s conventional account of law’s place in the Enlightenment project’.

 Jane Holder, ‘New Age: Rediscovering Natural Law’ (2000) 53 Current Legal Problems 151, pp. 159-63

Concerns about the damaging effects of mankind’s activities on the environment have led to considerable debate, reams of academic writings, policy proposals, and some legal measures to protect ‘the environment’. But the very word ‘environment’ is a symptom of the malaise, meaning, as it does, that which surrounds, which ‘environs us’, which is apart from people.

There is a school of thought that before the scientific revolution man’s moral and physical relationship to nature was close and intimate; man and nature were locked into one interacting world. In the medieval cosmology, a ‘Great Chain of Being’ linked together all elements of the universe (living and non-living objects on earth, earthly creatures and heavenly beings) so that they were mutually dependent...

The scientific revolution challenged the medieval cosmology based on divine purpose and proposed a more mechanistic conception of nature, governed by mathematical laws which destroyed the symbolic meanings attached to plants, stones and animals ...

Descartes’ reductionism – that animals and the human body as well as nature were machines which could be understood in terms of mathematics - was instrumental in forging this divide. In addressing whether man was distinguishable from the rest of nature,

Descartes reasoned that thinking established the fact of human existence. Whereas matter was composed of primary, ‘knowable’ qualities, the mind was subjective and attributed secondary qualities to nature.

This dualism of mind/matter and subject/object implied that nature was composed of reducible objects, metaphysically separated from man. ‘Nature’ came to be understood as a portion of the world, as one aspect of everything (and as a ‘resource’), rather than, as previously understood, as ‘an invisible medium through which each moved’.37

The empirical method of the later philosophers began with phenomenal experience-observation and analysis of data in such a way as to uncover universal principles or ‘laws of nature’, the emphasis being ‘not on the diversity of forms but on the uniformity of laws’.

These were the classical laws of physics-laws of gravity, and laws of motion. The accepted version of the Enlightenment is that the conception of nature as separate from man, as capable of being objectively observed, and ‘laws of nature’ understood, enabled man to exploit it more effectively than he had previously done. This assertion rests on a ‘domination of nature’ interpretation of, particularly, the Baconian creed that objective, scientific knowledge of the laws of nature meant that those laws could and should be used for man’s benefit.

The technocentric approach to environmental problems, enshrined in modern environmental law, may be, albeit simplistically, traced to the ascendancy of such ideas in this time. The Enlightenment philosophers and Baconian science challenged the paradigm for medieval science, set by theology, but did not entirely override it.

There was dissent, for example, from within the Enlightenment about the extent to which physical laws of nature might be understood by science and tamed. And medieval laws of nature’ remained influential. The Chain of Being, for example, was restated by Locke in his Essay Concerning Human Understanding (1690) and it strongly resembled Darwin’s ‘Web of Life’ which embodied a holistic approach to nature, albeit advancing the idea that there might be a grand design with mankind as the culmination of evolutionary progress.

The Chain of Being also influenced the Romantic movement of the eighteenth and nineteenth centuries, particularly its strains of animism and pantheism. Like other so-called laws of nature, the Chain of Being was used by many in this period to justify inequality; equality was contrary to nature and to seek to change one’s place was to thwart the ‘laws of order’. But, the implications of a hierarchy within species, as well as between, meant that the Chain of Being was discarded by Methodists, slave trade abolitionists and Benthamites.

The Romantic Movement continued to seek the reenchantment of the naturalw orld in the supposed unity of man and the land, as seen in the work of the Romantic poets in England, and the American (wilderness) transcendentalists. The emphasis was on being at one with the natural world to achieve a form of spiritual and inspirational‘self-realisation’ or awareness, through poetry, hiking, art, and landscape gardening.

Although taking an apparently benign form, appeals to the ‘state of nature’ were also functional, used particularly by the emerging middle classes to assert their natural rights against the remnants of the ecclesiastical order and to justify an economic programme of laissez faire, upheld by free market ‘natural laws’ of supply and demand. ‘Laws of nature’ were not merely a means by which the physical environment might be understood, they also became a sanction for unrestricted competition.

A further ‘law of nature’ was deduced by Malthus, as an antidote to the optimism of the Enlightenment (but which became a foundation for the tenets of capitalism which grew from it): population growth and the struggle for existence (of the laboring poor) places pressure on the means of subsistence, inevitably producing poverty, disease, famine and war. As a metaphor for the entrepreneurial values of competition, and the survival of the fittest in a struggle for existence, this Malthusian ‘law of nature’ was taken up by Darwin, amongst others.

That economics and politics played a part in the understanding and acceptance of Malthus’ ‘law’ may be seen in the rejection of ideas of struggle, and competition for limited space and resources in Russia, an expansive, sparsely populated land. A critical interpretation of ‘natural limits’ follows: scarcity is socially produced, rather than some externally imposed necessity or natural law. Nevertheless, Malthus’ appeal to respect ‘natural limits’ has become the modern ecologist’s holy grail, encouraged by Hardin’s parable on the tragedy of the commons.

At this stage it is possible to identify the antecedents of the modern battleground over nature. Modern ecologists, stressing interdependence and adherence to ‘laws of nature’ or

‘Natural limits’, draw upon the idea of a Chain of Being and Malthus’ population principle, whereas the intellectual roots of the environmental technicists or modernizers stressing the ability of man to understand laws of nature through physics and mathematics and thus manage the environment are Cartesian dualism and Baconian science. Fitzpatrick states: ‘In the creation and maintenance of nature, as well as for its identity as liberal legality, law comes to depend on scientific, disciplinary administration.’38

At the core of the shallow environmentalism engendered by enlightenment science is acceptance of a narrow meaning of progress or development, at least compared to the ecologists’ ideal that no one conception of progress should be privileged, but rather that there should be multiple readings and meanings of progress and development. It is this aspect of the critique of shallow environmentalism that leads to a powerful challenge to the globalization of the western model of development or the ‘westernization’ of the world, as discussed in the review of radical ecological theories.

36. David Harvey, Justice, Nature and the Geography of Difference (Blackwell, 1996), p. 123.

37. Neil Evernden,  the Social Creation of Nature (Johns Hopkins University Press, 1993).

38. Peter Fitzpatrick, ‘“The Desperate Vacuum”: Imperialism and Law in the Experience of the Enlightenment’ (1989) 13 Droit et Société 350.

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