Politics and Legal Environmental Ethics
Some ethical commitments of policy makers--and their intersections with environmental problems.
Policy cannot be value- neutral. If people didn't have different views of things, interests (economic and otherwise), values, and conceptions of "the good," we would have no conflicts and no decisions would require balancing competing "goods."
o One basic idea of politics is that it is far preferable to resolve these conflicts without violence. If we resort to that, then we end up being ruled by the most powerful. Power does not reliably correlate with being intelligent, wise, fair, just, consistent, open- minded and open-hearted, compassionate, or trustworthy. Yet these are the characteristics of rulers who can create the conditions in which human life can flourish, and problems be solved well. So politics is a commitment to the use of reason, and conflict resolution that allows life to continue.
o Political science has a long long history of thought and disagreement on how politics should be organized. Plato at one point wished for "philosopher kings"--wise people with absolute power. Authoritarian regimes are not usually so enlightened, however. Democratic theory, fearing the corruption power may bring, holds that le gitimate power is that which receives the consent of the governed. (Modern intellectual descendants of Plato, for their part, bemoan the depth to which the 'tyrrany of the majority' can sink. Modern communitarian theory looks beyond institutional governance to the fabric of the community as what is most important in civic life. Still others seek to found government on the developmental potentials of humans--an important point, since education and other positive forces have a lot to do with the quality of person, and thus society.
o Benjamin makes the point that our politicians must balance their roles as "trustee" and "delegate." As delegates they "represent directly the wishes and interests of their constituencies," but as trustees, they must "use their judgment in making what they regard as the best decisions on particular matters even if in certain cases this means taking a position different from the majority of their constituents" (p. 143 in readings). This indicates that politicians should not look only to opinion polls in their decisions, but should also seek to be informed. Their judgment in the "trustee" role is
very likely to be essential in environmental cases.
o But note, too, in Benjamin's discussion of Cuomo's response to Meehan, that "The political question--the question of how best in certain circumstances in a pluralistic society to translate personal conviction into public policy--is not fully settled by what one regards as the correct answer to the moral question" (p. 146). Later: "A competent politician... is one who manages to retain an independent moral identity while also, in the interests of the integrity of the community as a whole... acknowledging the positions of those whose world views point in a different direction" (149).
· Political theorists (such as Heilbroner, and Ophuls) have argued that the "consent of the governed," especially when combined with an expansionist- industrialist political economy (whether capitalist or socialist), fails in the real world of ecological limits. Both authors are also critical of the environmental records of authoritarian regimes as well. Whether one agrees with their prognoses or not, one thing is clear: environmental policy must incorporate scientific knowledge into many decisions. Science is what tells us (within sometimes large degrees of uncertainty) where the
limits are, and can help us predict the outcomes of different policy options.
o One principle that follows from the role of science is that learning must be paramount in environmental policy. We need to track our management attempts and constantly adjust based on what we find out. This approach is often called "adaptive
o But as mentioned in concepts in ethics, "is" does not justify "ought." The way things in fact are, tells us nothing about how they should be. (This point does not, however, ultimately hold absolutely--a difficult issue in metaethics that stems from any ethical theory's basis in unprovable assumptions about the nature of reality.) In the general argument underlying any environmental policy proposal, there are usually empirical premises, derived from science. They pertain to what causes what; based on them we can expect certain results from certain actions. But which results ought we to choose? Science doesn't tell that. So, policy proposals also have ethical premises, which
answer that question. Thus, anyone dealing with policy should be able to articulate, compare, select, justify, defend, and critique the ethical assumptions of policy
choices. Not all of these are substantive environmental questions, but some must be.
· Some ethical premises of specific areas of environmental policies are contained in other portions of this course. Briefly, a few of the important dimensions are:
o Which humans matter in environmental ethics? Only those with the resource to know the risks and hire lawyers and lobbyists, or all people? Only those in our nation, or beyond? Only ones alive now or others in the future?
o What environmental obligations do we owe other humans? Is there a 'right' to a healthy environment? One that can provide for a full range of needs? Of opportunities too? An enjoyable one? How do we define these in specific policy areas?
o Do only humans have ultimate value? Nonhuman animals? Any organism? Populations? Species? Not unitary things of any sort, but instead communities? Systems? How can any of these units be defined, and our obligations toward them justified? How do we deal with the many conflicts that arise when we grant any nonhumans moral standing?
o How do we deal with uncertainty and complexity of natural systems? Does this have implications for the burden of proof? For what we protect and how thoroughly we protect it?
o How do we think of environmental obligations? In cost-benefit terms? In some other way? How do we balance competing interests?
· Much of environmental policy boils down not to concrete solutions, but to formulating, maintaining and correcting processes which create solutions when values conflict ineluctably. What procedures should be used to resolve specific conflicts? The law in general, and especially administrative law, is full of such procedures for the many many kinds of conflicts present in society. See the page on ethical decisions; the second part lists some key values which such procedures should embody.
Some in policy positions are politically elected, others are not. Either way, such pos itions carry responsibilities of any civil service career. These include a commitment not only to serve constituents, but to act as wisely and responsibly as possible. All such positions, because of the decision- making powers they include, carry potential for corruption and abuse. Ethical public service means self-policing, and supporting reasonable systematic checks, against such corruption. See information from groups like Common Cause, that work on campaign finance reform.
· Political work, in its very nature, thrusts participants into controversies. It is often up to them to work out compromises on very difficult issues. See the Benjamin reading on the multiple senses of compromise. Benjamin argues that compromise, as in a less-than-wished for "splitting the differnce" between 2 irreconcilable principles or interests, does not have to mean one compromises one's integrity. He points to supervening values that must be called into play in such situations: the value on working together nonviolently, on preserving the possibility of working together on another issue later, on reducing polarization and stasis insociety and government. These, he argues, are among the most important values when others conflict utterly.
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