Dealing with Uncommon Ground: The Place of Legal Constructivism in the Social Construction of Nature
Keith H. Hirokawa
Albany Law School
Virginia Environmental Law Journal, Vol. 21, No. 3, p. 387 (2003)
Our relationship with “nature” is bounded by social and historical contingencies. This circumstance is especially problematic in the formulation of environmental policies, where the concept of nature seems to polarize rather than synthesize positions based on the very notion of nature: it simply allows the solipsistic dismissal of others' views. Nonetheless, we continue to debate these issues, often free of any inkling of how to integrate our ideas about nature into an ongoing legal and social regime. Such practices are self-defeating in the environmental policy arena, and worse, they emphasize the divide between environmental ethics and environmental law.
To close the gap, this article proposes research into the various legal constructions of nature that underlie property and environmental law. Legal constructivism embodies the acknowledgment that laws, and our appreciation of those laws, often entail particular perspectives of ourselves and of the subjects we legislate. A legal constructivist view of nature, then, recognizes that the meaning of nature is both indeterminate and constrained in ways that are not entirely dependent upon (or even related to) nature itself. Yet the insights of legal constructivism are not nihilistic: the constructivist approach provides a framework for bridging the gap between ethical and legal constructs of nature, and as such, provides a basis for a more fruitful dialogue on our relationship with the environment.
Number of Pages in PDF File: 37
Keywords: environmental policy, nature
Date posted: September 23, 2009 ; Last revised: October 21, 2012