Some Pragmatic Observations About Radical Critique in Environmental Law
57 Pages Posted: 23 Sep 2009 Last revised: 13 Oct 2012
Date Written: 2002
Critics of environmental law often condemn the law for its anthropocentric foundations and for its failure to incorporate a platform of deep environmental ethics. Such “radical environmental critiques” propose perspectives and norms for our treatment of the environment that diverge from existing legal vocabularies and concepts. This article questions the effectiveness of radical environmental critique for two related reasons: first, because the conceptual scheme underlying radical alternative theories undercuts their normative force; and, second, because deeply held beliefs alone are ill-equipped to achieve progress in environmental law. This article offers environmental pragmatism as a means to avoid the problems, while maintaining the goals, of radical environmental critique. In particular, this article argues that the challenge of integrating environmental ethics and law requires the pragmatic distrust of claims of ultimate truth and the replacement of that concept with a recognition of the importance of persuasion.
In support of this thesis, this article generalizes what might be called the traditional adversaries in environmental matters - property rights and non-use environmental values - as environmental paradigms. This article then questions whether the debate on environmental values is necessarily polemic - that is, whether we are all limited to being either property rights proponents or environmental activists. Environmental pragmatism, by its own terms a middle ground to any debate, offers a means to fuse the various value paradigms into a coherent system of law. Environmentalists are beginning to experiment with this type of visionary thinking, and have initially succeeded in convincing adversaries to see the other side of the land--the side not defined by its economic value.
Keywords: environmental law, environmental ethics, property rights
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