I've been away from Kos for a while for a lot of reasons. What spare writing time I've had has been devoted to a contribution I'm making to a book on sustainability. My piece looks at the way John Locke's theory of rights (and hence property, and hence government) depends on an infinite planet. Since Locke's political philosophy was pretty crucial to the structure of our own gov't, when we go looking for the roots of the un-ecological aspects to our system, his writing, especially his writing on property, is a good place to start. And there are definitely some things that will have to change as we face up to the fact that we live on a finite planet. Like, Fifth Amendment Takings law....
Locke's the guy who grounded government in the just consent of the governed, instead of the divine right of kings. Pretty crucial to democratic theory.
He instigated his revolution in political thinking by going back to an imagined State of Nature and showing how government could have (would have) arisen naturally, from human need, rather than as a gift of God (through Adam or Noah), as various people had argued.
Suppose, he said, men (and oh, it was always men with him) lived in a state of nature--no society, no government. Once born, every man has a right to live, which means every man has a right to appropriate what he needs for sustenance from the common bounty of nature. He's free to pick apples from trees, to hunt and kill game, to take long draughts of water from whatever stream he chooses. He has title to his approprations from nature because he has property in himself (he, and not God, owns himself), and whatever he mixes his labor with becomes part of him and thus his property.
Locke's natural man is entitled to take as much as he needs from what humans enjoy in common AS LONG AS two provisions are met: he leaves "enough and as good for others" and he allows nothing to spoil. To pick more apples than you yourself can eat, and to allow the excess to rot, is a form of theft: you're taking from the commons, from other people.
In Locke's state of nature, you're allowed to appropriate land, too, as long as "enough and as good" is left for others. But all the good land is soon taken--which is why this passage in his work makes repeated reference to the "vast, inland, vacant places" of America. (Never mind that they weren't really vacant--they had some inhabitants who were using them just as they pleased--and that the whole "as good" part of the deal wasn't operative; a commons that's a thousand miles and a difficult sea journey away isn't exactly "as good" as a commons ready to hand.)
You can see where the need for an infinite planet comes in. When humans are few and far between, what I take from nature doesn't diminish what you can take from nature. But when the population of the British Isles begins to register in the millions, there isn't enough land for everyone to get themselves a few acres to live on.
There's a whole long rigamarole about how the invention of money releases humans from these two rules, allowing accumulation of wealth, allowing appropriation of land to continue even when "enough and as good" isn't left. Basically, Locke believes that money allows for the development of economic growth, which increases the amount of stuff (if not land) that we have, so when someone appropriates land even if they don't leave "enough and as good" land for others, they help make enough and as good commodities for others. But this just displaces the problem: Locke's theory goes from needing the planet to have an infinite amount of land to needing the planet to be able to support economic growth infinitely and indefinitely.
Maybe in 1690 that seemed possible; humans were a tiny tiny claw-scratch on the face of a huge planet. But three hundred years and 6.5 billion people later, we have to admit it just can't happen.
I believe that one of the places that this will come to a head is in the arena of property law, specifically Takings law, the law and caselaw built on the Fifth Amendment's guarantee that no private property will be taken for public use without just compensation.
Land is where ecosystems are found (non-aquatic ones, anyway), and the owner of a piece of land is not the only person who benefits from the existence of those ecosystems. Back when nature was large and human population was small, it didn't so much matter that privately owned ecosystems had public benefits: there was "enough and as good" public nature to provide the ecosystem services on which civilization depends. But now that there are more humans and much less biomass left alone as natural ecosystems, the services and benefits that nature provides are increasingly scarce, and they have become something that the public has a crucial interest in maintaining.
For instance: time was, if you owned a forest, you could cut it down whenever and pretty much however you chose. (You couldn't go dropping trees on neighbor's fences or houses, but as long as you steered clear of causing that kind of mechanical damage you were okay.) Gradually a second phase of property law emerged, one based on acknowledging some fundamental environmental realities. You can't harm endangered species; maybe they live in your forest, which means you can't cut it whenever and however you like. You can't silt up the streams with your logging operation; silt kills fish and other aquatic life. The public has an interest in what you do on your (supposedly) private property.
What we're going to see emerge in the next few decades is a third phase of property law, one that acknowledges ecological reality. Cutting trees on a watershed denies forest services to others--including the service of water retention and runoff regulation. When watershed forests are cut, people downstream are going to see more flooding. If the watershed is largely deforested, then the cutting of even a single tree (or, to indicate how the example expands, the paving of a single square foot of land) is going to marginally increase the flooding below. The effect is small, but undeniable, and so in a flood-prone watershed the public has an interest in the cutting of every single tree on the watershed.
But, you might be thinking, the effect of cutting a single tree is too small to matter. It's absurd to think we need that level of regulation. Two answers: one, it's possible to turn a billionaire into a pauper by taking away one penny at a time. You'd just have to do it a hundred billion times. A watershed that has significant flooding is not at all like the billionaire, who has wealth to spare; it's like a pauper who is on a very, very tight budget, a budget in which every dollar, every dime, maybe even every penny matters.
And two: I'm not talking about regulating the cutting of single trees, but of having policies that ensure that on average the number of trees in such watersheds is not diministed by private action. It is possible to achieve macro policy goals (like preservation of watershed) without micro managing individual property owners.
So, if we pass a law that discourages the cutting of forests on watersheds, is that a regulatory taking that requires compensation under the Fifth Amendment? If new zoning laws deprive a developer of the opportunity to build beach-front houses on sensitive barrier dune ecosystems, is that a taking? (The court said yes in Lucas v. South Carolina Coastal Council.) Where do we draw the line between what's public and what's private?
In a world that is taken right up to the edge of what the planet can give to us and what it can absorb from us, there are no truly private acts anymore. Your choice to "walk or ride?", carpool or gas guzzle, is not just a personal moral choice, it's an individual choice that ALL of us have an interest in, because the planet's capacity to absorb Green House Gases has been used up. Think of that capacity as something we share, in common, as humans; because it's overused, my use of it does not leave "enough and as good" for you or any others. Which means:
By Locke's principles, I'm a thief every time I emit GHG.
This analysis leads directly to the idea that civil freedoms depend on the maintenance of significant degree of ecological resilience--a quality of ecosystems that is in short supply in our overdeveloped world. (I talk about this in a paper I took to a conference in Europe last year; you can download the conference proceedings, including my paper, here.
What to do? Well, one thing we could do is to encourage our property law to move more clearly into its next, emergent phase, a phase in which a more fully ecological understanding shapes policy and redefines where on their spectrum private and public are distinguished. Law has got to acknowledge that in a world without ecological resilience, the reach of the public interest into private ownership of property is pretty deep.
There's a conservative/libertarian movement that disagrees completely; it wants to implement an absolutistic notion of property rights: "If I own the land, I can do whatever I like on it"--that sort of thing. If we implement that outdated idea we’re likely to see our civilization go the way of the Ancient Ones on Easter Island: there, the loss of forest to competitive tribal statue-building brought about the crash of the entire culture. If the chieftan who instigated the cutting of the last copse on Easter Island had an inkling of the loss he was about to impose on his fellow islanders, he nevertheless proceeded; we can imagine that he felt powerless and precedentless to do otherwise in the face of long-established cultural and political practice.
What he needed, and what we need today in our property law, is a reversal of the conceptual frame, a resetting of the default. The appropriation of any form of natural capital from the cultural commons should not be treated as an individual chieftan’s or an individual landowner’s entitlement. Following Locke, we could very easily (theoretically) and with some difficulty (politically) establish in this country a different expectation: if appropriation of natural capital fails to leave "enough and as good" ecosystem services for the enjoyment of other citizens, then that appropriation of natural capital is a taking from the public commonwealth, a taking that amounts to theft.
Such a taking ought to be prohibited or at least be costed and charged to the appropriator. Requiring such appropriators to pay the full cost, including the costs in lost natural capital, of their appropriations would allow the market to be a more efficient allocator of resources. Global warming is a market failure that is planetary and epochal in its scope; anyone who maintains that markets are always and everywhere efficient--that they don't need intervention, structuring, and regulation--has got some explaining to do.
In retrospect we can see that the value of the forest on Easter Island was the value of the entire civilization; had their system been structured to allow that valuation to enter into decision making, the civilization might well have endured.
The lesson seems clear: if we fail to value natural capital appropriately—if we continue to abide by the rhetoric of an infinite planet that is encoded into law and economic practice—then it seems unlikely that our civilization is going to survive. If we are to have an ecologically sustainable society, our institutions and practices—property law prominent among them--need to adapt to reality and accept that the planet is finite.