Sean Coyle (2004), has argued that current property rights have their historical legal and philosophical roots in the writings of the natural law philosophers Pufendorf, Grotius and Locke (2004:12). He argues that these philosophers understood the notion of property as fundamentally justified only because it allowed and enabled the inclusion of limits on those rights. This was understood as intrinsic to the concept of property and the legal basis for constraining the behaviour of owners of property, whether material or intellectual. In a contemporary context however, where property usage, individual and corporate, is destructive of the environment as a common good, Coyle concludes that these:
“old truths seem no longer to constitute a suitable framework within which to work out the matrix of obligations and entitlements: the seventeenth century supposition of unqualified harmony between the environment and human interests is no longer sustainable” (2004:60).
As I write, the news is filled with the latest arguments as the UK and the EU struggle to reach an agreement on trading standards, the second part of the Brexit withdrawal agreement. One key sticking point is dispute between French and British fishermen about to whom fish stocks belong, particularly those in French waters and in English waters. In this context, Coyle’s academic arguments studies in natural law and the evolution of jurisprudence are a barely adequate response to the depth of the current environmental crisis. There are two grounds for arguing this. First will the law, whatever its philosophical underpinning, continue to hold essential public democratic legitimacy. Second, if legal frameworks have any value at all, what will constitute a ‘suitable framework’ for the obligations and entitlements that Coyle describes?
What would be the basis for questioning the continuing relevance of law? In the Brexit negotiations, there has been a question of whether the UK Government would be prepared to break its international legal obligations, based on an overriding insistence on the right of the UK to place its own interests first consistent with its supposed sovereignty and ultimate freedom from any international obligations. Fortunately, this threat has now been rescinded. On the other side of the argument, Extinction Rebellion has also shown its preparedness to side-line the law in favour of a moral imperative to act, legally or illegally. Both speak to the limitations of the law.
If the law does have a role, what would it look like. Jenny Steele has argued that we need to look to current developments in environmental law, not return to 17c roots. She cites the idea of developing environmental concern and constraints not within the law itself, that is in its philosophical roots and legal precedents, but rather within politics and economics. That approach, to me, is a much more promising one in terms of environmental protection and renewal, with an appeal to popular support, than one couched in philosophical and legal arguments that is less likely to engage public support.
Coyle, S. (2004) Nature and the State of Natutre, in Coyle, S. and Morrow, K. (eds.) Philosophical Foundations of Environmental Law: Property, Rights and Nature. Portland, Oregan: Hart Publishing, pp.9-60.
Steele, J. (2006) The Philosophical Foundations of Environmental Law: Property, Rights and Nature by Coyle, S. and Morrow, K. Portland, Oregan: Hart Publishing, 2004, in The Modern Law Review , Volume 69 (4). pp. 663-669.