In _The Moral Austerity of Environmental Decision Making_ a group of prominent environmental ethicists, policy analysts, political theorists, and legal experts challenges the dominating influence of market principles and assumptions on the formulation of environmental policy. Emphasizing the concept of sustainability and the centrality of moral deliberation to democracy, they examine the possibilities for a wider variety of moral principles to play an active role in defining “good” environmental decisions. If environmental policy is to be responsible to humanity and to (...) nature in the twenty-first century, they argue, it is imperative that the discourse acknowledge and integrate additional normative assumptions and principles other than those endorsed by the market paradigm. The contributors search for these assumptions and principles in short arguments and debates over the role of science, social justice, instrumental value, and intrinsic value in contemporary environmental policy. In their discussion of moral alternatives to enrich environmental decision making and in their search for a less austere and more robust role for normative discourse in practical policy making, they analyze a series of original case studies that deal with environmental sustainability and natural resources policy including pollution, land use, environmental law, globalism, and public lands. The unique structure of the book—which features the core contributors responding in a discourse format to the central chapters’ essays and debates—helps to highlight the role personal and public values play in democratic decision making generally and in the field of environmental politics specifically. _Contributors._ Joe Bowersox, David Brower, Susan Buck, Celia Campbell-Mohn, John Martin Gillroy, Joel Kassiola, Jan Laitos, William Lowry, Bryan Norton, Robert Paehlke, Barry G. Rabe, Mark Sagoff, Anna K. Schwab, Bob Pepperman Taylor, Jonathan Wiener. (shrink)

In this essay I will argue that, preconceptions notwithstanding, Immanuel Kant does have an environmental ethics which uniquely contributes to two current debates in the field. First, he transcends the controversy between individualistic and holistic approaches to nature with a theory that considers humanity in terms of the autonomy of moral individuals and nature in terms of the integrity of functional wholes. Second, he diminishes the gulf between Conservationism and Preservationism. He does this by constructing an ideal-regarding conception of the (...) former that values nature not as "merely" a thing to be used by human preferences and translated by markets, but as an essential component and prerequisite to the intrinsic autonomy of human beings. Simultaneously, he argues for a definition of preservation which places responsibility on humanity to harmonize moral agency with the functional integrity of natural systems. Here humanity and nature become the two unique and equally important components of what we might call the greater " Kantian ecosystem." In addition to the theoretical contributions of Kant's approach to our appreciation of the duties we owe to our natural environment, I will also suggest that Kantian Conservationism and Kantian Preservationism provide a sound moral basis for public policy arguments that wish to take the intrinsic value of humanity and nature into account. By requiring decision makers to consider citizens as ethical ends and nature as a functional end-in-itself, public choice becomes a process of restricting the use of the "kingdom of nature" to the essential requirements of the "kingdom of ends.". (shrink)

Preface The status of sovereignty as a highly ambiguous concept is well established. Pointing out or deploring, the ambiguity of the idea has itself become a recurring motif in the literature on sovereignty. As the legal theorist and international lawyer Alf Ross put it, “there is hardly any domain in which the obscurity and confusion is as great as here.” 1 The concept of sovereignty is often seen as a downright obstacle to fruitful conceptual analysis, carried over from its proper (...) setting in history to “plague and befog contemporary thought.” 2 . . . So contested is the concept that, rather than pursuing the contestation, many political theorists think we should give up so protean a notion. Granting that the debate on the relevance of sovereignty frustratingly oscillates between claims that it will either continue to exist or that it is about to disappear, forgetting it altogether, and thereby escaping this seemingly endless argument, can easily appear as the most urgent task for political theory . The following argument makes a case that the “urgent task” is not the abandonment of the concept of sovereignty, but an understanding of its essential philosophical nature as an integrated and evolving expression of practical reason. Sovereignty is neither ambiguous nor obscure once its fundamental presuppositions are laid bare and its many philosophical and historical manifestations shown to be the product, in actuality, of a single, dialectally dynamic but integrated set of metaphysical elements. This is the first of three arguments describing the evolution of international law as a manifestation of practical reason through an application of philosophical method to the source , locus , and scope of the concept of sovereignty. It moves from a dialectic balance favoring utility to a balance dominated by legal right to a dialectic of duty to humanity and nature. All three arguments are meant to be a contribution to the new field of International Legal Philosophy as defined by Phillip Allott. 4 This field combines a sensitivity to legal practice with an effort to understand the underlying philosophical determinants of empirical choice and behavior. One purpose of international legal philosophy is to “remove” from the minds of those who study the law what Diderot defined as “the sophism of the ephemeral,” and what Allott calls “the disempowering idea that what xii Preface happens to exist now is inevitable and permanent.” 5 A core imperative is to “reunderstand what it is to be a thinking being” 6 and to rediscover the dialectic between the private and the public as it determines, and is redetermined by, legal practice. This requires a “revolution in the human mind” 7 so that we may transcend the current dependence on positivist methods and empirical fact as an end-in-itself, and try to understand the underlying and more constant and essential ideas and inherent dialectics that constitute the substructure or “metaphysics” of international law. I will approach this “revolution” with the use of R. G. Collingwood’s philosophical method 8 and the philosophy of David Hume, applied to international law as an expression of practical reason. The goal of philosophical method is the construction of a comprehensive policy argument (CPA) for a public policy or legal issue. In addition to the conventional use of empirical models and their logic of investigation in the study of policy and law, CPA requires that an underlying philosophical logic of concepts be deciphered to identify the ideas within the issue, and their definition, overlap, and systematic interdependence. Philosophical method is a means with which to interpret and understand competing systematic and complete conceptual logics, existing at the core of an issue and pertinent to policy change. Philosophical method is therefore not meant to be a replacement for the empirical investigation of a policy or legal issue, or the use of scientific method in social studies. Rather, it is a complimentary and prerequisite method that seeks to transcend the limitations of positivism and present a more complete understanding of the philosophical presuppositions of positivist ideas like power, interest, or strategic rationality. Philosophical method is meant to be used with the facts of the policy or legal issue to match an illuminating logic of concepts with a pertinent logic of investigation . Within the CPA, the use of philosophical method and the metaphysics of a policy or legal issue is assumed to be critical to the full understanding of the overlapping concepts, dialectics, and scale of forms that determine, and are determined by, the empirical context of the policy or legal topic. Specifically, instead of utilizing bits and pieces of various theoretical arguments to address narrowly focused empirical questions, as positivism prescribes, I will address the evolution of international law as practical reason in three phases. Each will be approached through a single integrated logic of philosophical concepts from a particular philosopher (i.e., David Hume, G. W. F. Hegel, Immanuel Kant). This philosophically holistic approach to the law is based on the assumption that only through the use of a single integrated argument in legal analysis can sovereignty, or any concept, be understood as a truly systematic and logical whole. A complete philosophical paradigm has a dialectic integrity and systematic logic that can more adequately describe the evolving essence of a concept like sovereignty. This approach also has the advantage of generating a number of distinct holistic descriptions of the law through the application of different philosophical systems, one at a time, to its factual structure. 9 Positivism does not seek Preface xiii holism, and rejects the idea that “theory” has such a characteristic. The essential or comprehensive substructure of any idea is therefore ignored in a method that recommends the observation of empirical problems through the use of whatever hodgepodge of theoretical elements is seen fit to frame its superstructure. This failure to deal with metaphysics has retarded both an essential understanding of international law as a species of legal system, and any holistic and dialectical conceptualization of its inherent concepts, like sovereignty. A second positivist convention expects modern theorists to create new theory rather than to refine and apply that of existing philosophy. This predisposition is driven by the positivist goal of discovery that ignores refinement as a possible purpose of philosophical analysis. Collingwood argues that philosophy must take that set of ideas already known and utilize existing systematic philosophical arguments to refine them so that they evolve closer to their essence as concepts. Considering this imperative, the idea of sovereignty can be assumed to have had valid usage for hundreds of years, over which time, the concept has evolved to mean different things, each a refinement of the definition that preceded it. Transcending positivism means that the scholar’s search is not for “new” material, but to decipher the metaphysical essence of a concept as it has been made manifest over time and context. These manifestations are rooted, and refined from, the known terms of that concept’s inherent idea(s). Rather than depending exclusively on positivism and its conventions, my work utilizes, in addition to Collingwood, the intact philosophical systems of Hume, Hegel, and Kant to trace the refinement of international law as a product of human practical reason. These paradigms, or integrated systems of logical concepts, will be applied to legal practice individually, so that each CPA can be deciphered separately. This provides a set of integrated and logically intact paradigms for the evolutionary stages of practical reason in international law. Because each argument is applied systematically, a deeper understanding of the source, locus, and scope in the development of law in general, and international law in particular, is possible where it is not with the application of various disconnected components of many theories. Each CPA based on Hume, Hegel, or Kant can then be used to describe a distinct context that its logic of concepts best illuminates; specifically, the (1) genesis, (2) contemporary dilemmas, and (3) future of the international legal system. By widening the perspective of international lawyers and policymakers, they can more easily perceive the dialectic of ideas that has created, and is refined by, the legal practice in which they participate. We also move toward Allott’s goal of “human self-perfecting.” 10 And, in addition, by providing a more complete knowledge of the origins of legal practice and its evolution, we illuminate the practical possibilities for what we might “choose to be” 11 in the future. To achieve this, the essential metaphysical elements of state sovereignty and its inherent evolutionary scale of forms will be deciphered and described. This will transform what appears to be a multitude of definitions and xiv Preface practical realizations of the concept of sovereignty into a set of interdependent manifestations of a single substructure, made of a single set of dialectic elements. The interpretation of international law through practical reason sorts and integrates a diverse and discordant literature and defines state sovereignty as a single concept evolving on a scale of forms that allows it to exhibit diverse character traits, all arising from different combinations of common and essential metaphysical elements. This approach, compared to positivist methods and legal realism, allows one to transcend current agreement that sovereignty is, at best, a narrowly focused set of empirical characteristics or, at worst, “organized hypocrisy.” 12 This method also encourages the scholar and practitioner to understand the predispositions and pitfalls of the concept of sovereignty, as well as its potential future paths, more effectively. The use of philosophical method to create policy paradigms out of preexisting philosophical systems and apply these to international law will be called Philosophical-Policy & Legal Design . This approach allows the use of preexisting and complete philosophical arguments that provide an adequate logic of concepts to chart the evolution of the idea of sovereignty along its scale of forms. An examination of the source of practical reason in human social convention with the employment of a philosophical-policy drawn from Hume’s logic of concepts about human nature will demonstrate this new approach. Why Hume? Because, up to now, without an adequate substructure we have arguments, like Brunne é’ s and Troope’s, 13 that may correctly identify international law as an “interactional” system, but cannot present any argument as to why it is, where this empirical reality comes from, or what its implications are for the future. Comparatively, Hume provides a logic of philosophical concepts that answers these concerns. First, he fulfills the requirements for a fuller understanding of the origin and evolution of law from social convention and the dependence of social convention on the human imperative for society. Second, he offers a more adequate delineation of the overlapping concepts of the law in terms of the ideas and institutions that deal with norms and justice (e.g., principle, process, practice, rule, power, interest). Third, he provides a fundamental understanding of the essential dialectics at the core of a conceptualization of the law with both unconscious and conscious human participation (i.e., passion. (shrink)

Public decisions on environmental risk have traditionally been weighed in terms of the principle of efficiency and its methodologies, such as cost-benefit and risk-benefit analysis. These original essays argue for moving beyond the market paradigm toward making policy that incorporates environmental values. Scholars representing a broad range of disciplines present a thorough analysis and methodological investigation of environmental risk and the potential for integrating environmental values into the policymaking process. They address the normative and theoretical roots of environmental risk, describe (...) the distinct domain that exists for environmental values as opposed to economic values, and look at the conflicts between economic and environmental values within the applied context of the NIMBY (not in my back yard) phenomenon. (shrink)

In this essay, I argue that environmental risk is a strategic situation that places the individual citizen in the position of an imprisoned rider who is being exploited without his or her knowledge by the preferences of others. I contend that what is at stake in policy decisions regarding environmental risk is not numerical probabilities or consistent, complete, transitive preferences for individual welfare, but rather respect for the human agency of the individual. Human agency is a prerequisite to one’s utility (...) function and is threatened and exploited in the strategic situation that produces the imprisoned rider. This problem is created by the policy maker’s assumption that his or her task is to assume rational preferences and aggregate them. The guidelines for evaluation and justification of policy should move beyondwelfare preferences and involve an active state protecting human agency and empowering the imprisoned rider. Only in this way can we free all citizens from fear of exploitation by those who would impose collective and irreversible risk on each of them in violation of their unconditional right to their own agency. (shrink)

In this essay, I argue that environmental risk is a strategic situation that places the individual citizen in the position of an imprisoned rider who is being exploited without his or her knowledge by the preferences of others. I contend that what is at stake in policy decisions regarding environmental risk is not numerical probabilities or consistent, complete, transitive preferences for individual welfare, but rather respect for the human agency of the individual. Human agency is a prerequisite to one’s utility (...) function and is threatened and exploited in the strategic situation that produces the imprisoned rider. This problem is created by the policy maker’s assumption that his or her task is to assume rational preferences and aggregate them. The guidelines for evaluation and justification of policy should move beyondwelfare preferences and involve an active state protecting human agency and empowering the imprisoned rider. Only in this way can we free all citizens (a priori) from fear of exploitation by those who would impose collective and irreversible risk on each of them in violation of their unconditional right to their own agency. (shrink)