natural law

Our Q&A series continues this week with Bruce Pardy, a professor in the Faculty of Law at Queen’s University in Kingston, Ontario, Canada. Pardy has written extensively on matters of environmental law and governance, including ecosystem management, environmental assessment, civil and regulatory liability, climate change, and water law. He has taught at law schools around the common-law world, including Canada, the United States, and New Zealand.Professor Pardy is a 2011 PERC Julian Simon Fellow. He is currently writing a book called A Natural Law of Systems: Ecosystems, Markets, and the Meaning of Liberty.Q: What is legal instrumentalism? How does it differ from the rule of law?A: Legal instrumentalism is based upon the premise that the role of government is to solve specific problems by specific means. It is a “hands-on” way to govern. As the label suggests, legal instrumentalism says that law is important only as an instrument to achieve the “right” result. In other words, law is a means to an end, or a tool for the social good. The problem, of course, is that, like beauty, the right result lies in the eyes of beholder, and differs from person to person. Down that route lies the tyranny of the arbitrary rule of persons. The premise of the rule of law is that government decision-makers are not free to do as they think best because they are bound by generally applicable, abstract rules that bind governments as well as citizens. Brian Tamanaha of Washington University Law School has aptly pointed out that instrumentalism and the rule of law are the two core ideas of the American legal system, but in certain crucial respects they conflict. Although governments today widely claim to believe in the rule of law, their behavior is predominantly instrumentalist in nature.Q: Thomas Aquinas proposed another category: natural law. What is natural law and what are some difficulties that arise in its application? Conversely, what occurs in the absence of natural law?A: The premise of natural law is that there are objective moral truths that apply to all human beings upon which laws should be based. Natural law purports to contain inherent, substantive limits on what legislatures and judges can do, because it is a “higher” law, based upon universal and immutable moral principles, whose purpose is to reflect what is good for human beings. The problem is that the many volumes of moral reasoning produced by philosophers and legal theorists over the centuries illustrate the opposite truth: moral standards are personal, arbitrary, subjective, and cannot be proven to be otherwise. Since natural law claims to be based upon moral absolutes rather than public opinion, it is not sufficient to establish their validity by pointing to majority opinion or public consensus. The agreement of a majority of people about moral absolutes simply means that they agree, not that the moral absolutes that they believe in are, in fact, absolute. Twenty years hence public opinion may have shifted, but by definition moral absolutes never do. If the real criterion is majority opinion, then the principle of basing laws upon universal morality is a fiction. But in the absence of natural law, law is a vacuum, able to be filled by whomever is powerful enough to take the reins. What is needed is an objective, non-arbitrary set of principles on which law can be based.Q: What do ecosystems and markets have in common?A: Markets and ecosystems run themselves.  These systems are not just collections of things, like widgets or frogs, but consist of elements interacting in a complex web of relationships and patterns that together amount to phenomena different from the sum of their parts. They operate according to their own immutable characteristics and rules, and share important features. They are organic and evolutionary, changing through time, rather than existing in a fixed or static state. They arise spontaneously, and their fundamental rules have not been created or invented by human beings, and cannot be changed by government design. All participants are equally subject to their forces; systems do not play favorites.Q: In your paper, “The Hand is Invisible, Nature Knows Best, and Justice is Blind” [PDF], you write that, “Human action can affect the outcome of system processes, but it cannot change the nature of those processes.” Does this eliminate the need for laws that apply to markets and ecosystems?A: The immutability of ecosystems and markets does not mean that there cannot or should not be laws that apply to them. Calling these systems “immutable” does not mean that they are impervious to external forces, but only that their internal principles are independent of state regulation, moral argument, or personal preference. Their protection is not a mandate to be performed “in the public interest.” It is not because someone has deemed them to be socially valuable that the law should provide for their operation. These systems exist. People live within them, because they cannot do otherwise, and depend on them for survival. They follow their own rules, because they can do nothing else. They cannot be manipulated or changed to behave differently, and efforts to do so are misguided. Instead, legal rules and principles need to account for the manner in which they operate.