Dealing with Uncommon Ground: The Place of Legal Constructivism in the Social Construction of Nature
By Keith H. Hirokawa
INTRODUCTION
As suggested in William Cronon's statement, the concept of “nature” is one that defies generalization because it is subject to so many descriptions. Indeed, throughout history and across cultures, the “world-out-there” has taken on so many divergent meanings that no matter how well-founded our science, ethics, economics, or other beliefs, we can only be puzzled about what exactly we refer to as “natural.” Moreover, nature is so fundamental an idea that we are often forced to rely on the naturalness of our view of nature to prove that our view is accurate.
The contingency of “nature” is problematic for those implementing environmental policies in the courts and legislatures, particularly those engaged in debates about how the law should protect, manage, or allocate nature and its resources. As explained by Cronon, discussions about environmental policy illustrate that 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,2 and worse, they emphasize the divide between environmental ethics and environmental law.
To close the gap, this essay proposes research into the various legal constructions of nature that underlie the regulation of the use of and hazards to the environment. 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, defines nature by implication from particular statements of law.
The thrust of legal constructivism is that it takes two potentially incompatible ideas--the constructivist idea that terms and concepts are malleable and contingent, and the lawyer's notion that legal precedent constrains how and when environmental ethics can contribute to the formulation of legal norms--and inserts a hopelessly simplistic but unavoidable insight into the environmental ethics debate: the idea that an understanding of nature as a legal construct is compelling as a practical matter when seeking to integrate environmental philosophy with environmental policy.3 It is not the intention of this essay to provide a comprehensive defense for practical reasoning on environmental matters.4 Rather, this essay attempts to ground practical means for changing the law in the context of constructivism, and to inquire into whether constructivism provides a framework for effective and persuasive discourse.
The first section of this essay discusses social constructivism so that we can see how a legal construction of nature could be commensurate with constructivist goals. Next, this essay discusses the appropriate characteristics of and importance for a legal constructivist viewpoint. Thirdly, this essay examines a variety of legal constructs of nature in an attempt to demonstrate how a legal constructivist's project could be performed. Finally, in questioning whether a legal constructivist view of nature will be helpful to the environmental debate, this essay suggests a principle relevant for legal construction--a light-mindedness toward both the rules of law and the interpretation of those rules--that appears essential to the success of a legal construction of nature.
As suggested in William Cronon's statement, the concept of “nature” is one that defies generalization because it is subject to so many descriptions. Indeed, throughout history and across cultures, the “world-out-there” has taken on so many divergent meanings that no matter how well-founded our science, ethics, economics, or other beliefs, we can only be puzzled about what exactly we refer to as “natural.” Moreover, nature is so fundamental an idea that we are often forced to rely on the naturalness of our view of nature to prove that our view is accurate.
The contingency of “nature” is problematic for those implementing environmental policies in the courts and legislatures, particularly those engaged in debates about how the law should protect, manage, or allocate nature and its resources. As explained by Cronon, discussions about environmental policy illustrate that 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,2 and worse, they emphasize the divide between environmental ethics and environmental law.
To close the gap, this essay proposes research into the various legal constructions of nature that underlie the regulation of the use of and hazards to the environment. 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, defines nature by implication from particular statements of law.
The thrust of legal constructivism is that it takes two potentially incompatible ideas--the constructivist idea that terms and concepts are malleable and contingent, and the lawyer's notion that legal precedent constrains how and when environmental ethics can contribute to the formulation of legal norms--and inserts a hopelessly simplistic but unavoidable insight into the environmental ethics debate: the idea that an understanding of nature as a legal construct is compelling as a practical matter when seeking to integrate environmental philosophy with environmental policy.3 It is not the intention of this essay to provide a comprehensive defense for practical reasoning on environmental matters.4 Rather, this essay attempts to ground practical means for changing the law in the context of constructivism, and to inquire into whether constructivism provides a framework for effective and persuasive discourse.
The first section of this essay discusses social constructivism so that we can see how a legal construction of nature could be commensurate with constructivist goals. Next, this essay discusses the appropriate characteristics of and importance for a legal constructivist viewpoint. Thirdly, this essay examines a variety of legal constructs of nature in an attempt to demonstrate how a legal constructivist's project could be performed. Finally, in questioning whether a legal constructivist view of nature will be helpful to the environmental debate, this essay suggests a principle relevant for legal construction--a light-mindedness toward both the rules of law and the interpretation of those rules--that appears essential to the success of a legal construction of nature.
