Ecosystem law & policy: Kant’s philosophical argument for the anticipatory regulation of environmental risk

Abstract

Speaker: John Martin Gillroy, Lehigh University The first part of the twenty-first century has been marked by wildfires, flooding, drought, rising sea levels and melting glaciers, all capped off by the COVID- 19 global pandemic. If this series of cascading crises tells us anything, it is that an environmental risk policy focused primarily on an efficient economy and only the ex-post regulation of harm to the environment is catastrophically inadequate. Current environmental policies fail to protect and empower human and natural values which should be the foundation of planning and policy implementation. Such a basis for policy would prevent the global crises we are currently experiencing. The ‘economic’ status-quo has failed for decades to properly regulate climate change; much has been written about its limitations, but it continues to be used. The immediate threat and the drastic ex post measures required by the environmental crises and the pandemic provide vivid evidence that the conventional assumptions of our current public policy model for environmental risk are not just limited, but deadly to our planet and our existence. A vital reason that these environmental dilemmas have escaped solution is that we continue to examine them within the context of modern theory, specifically positivism, the assumptions and presuppositions of which fail to grasp what is really at stake in these issues. To put it simply, the current methods are inadequate to solve the problem because they do not, and cannot address the fundamental issues at the heart of many policy issues and the laws they support. This is particularly true when one considered the underlying moral premises of environmental issues as they affect both human moral integrity and the functional integrity of ecosystems. Positivism relies on a limited scope to consider problems and solutions: the present as defined by the empirical. To broaden that scope, we need to understand the essence, or full complexity, of the human being as a basis for deliberation and choice in policy and law. The only way past these prejudices is to seek a philosophical cosmology that expands positivism by predating it. Surprisingly, I am arguing that the way forward is to look back. It is only when we change the essential philosophical-moral premises of environmental risk policy and the codified laws that support it, that we can create anticipatory ecosystem policy and law that will prevent further damage and help us rebuild. It is in the arguments of pre-positivist Enlightenment philosophers, like Kant, and their logical maps of human nature, practical reason and moral agency, that a philosophical method can be found to synthesize prerequisite logics of concepts upon which modern theory, and its components, can be reconsidered. In this chapter I will, as an example of how this may be achieved, replace the assumptions of the dominant market paradigm for policy choice with a Kantian paradigm for environmental risk analysis.