Monday, July 20, 2009

understanding the law as one of many expressions of social values and norms

Below is a roundup of links on law (and institutions more generally) and economics, and how important the "rules of the economic" game are to analysis of any situation. It was mainly set off by a recent reading of two very interesting news articles found on BoingBoing and 3QuarksDaily respectively. The third is more of a fun piece that I recently recalled reading first over a year ago (and which I actually used in a presentation on U.S. contract law last summer).

"Colorado passes law to allow rainwater harvesting"

"Should nature be able to take you to court?"

"What's traffic in Hanoi and St. Petersburg got to do with institutional reform?"

What struck me about article 2 was how the problem is framed. Basically, it is argued we currently have a problem with exploitation of the environment because the environment does not have a "say" in how we use it. If we give it a "say", we provide it with the agency necessary to reduce its exploitation through the threat of legal action against the exploiting parties. Nature is given a freedom it previously did not enjoy and the result is a balancing of the scales, so to speak.

When one frames the problem in this way, one is assuming the law to be naturally fair, specifically with regard to market transactions. For an example that draws on an instrumentalist view of law, in the U.S. while both the employer and the employee have inalienable rights to life, liberty and the pursuit of happiness, this fact has not precluded the former from being exploitative of the latter. Alterations of political rights aside, the relationship between humans and the environment is an economic one that operates according to a different set of rules according to the economic system.

In article 1, a few of the comments make an interesting distinction between two competing conceptions of land use. Generally in the eastern U.S., rainwater is seen as part of common property and cannot be artificially diverted or collected. In the western U.S., "first use" is more prevalent, so since this house caught the water, they are fully entitled to it. In terms of the political economy of the issue, the policy of the eastern U.S. makes more sense. So, I think the Colorado law is unjust to the fact that everyone should share in the rainwater. A main problem with my view is the inevitable excess demand that will either result in driving up the price (leading to welfare issues) or simple exclusion of some groups from water entirely. But, there are welfare issues associated with the alternative model as well: "first use" requires an absolutist stance on private property that is not without its own logical consistencies.

Article 3 has some nice youtube videos that call into question the importance (or lack thereof) in establishing formal legal constraints, and how societies often are able to solve problems such as traffic congestion in other ways. It relates back to themes already touched upon in this blog, such as the myth of the tragedy of the commons ( and humanitarian alternatives to the libertarian model of society (

Overall, some very useful articles for understanding how the rules of the game affect society. Enjoy!

UPDATE: One more link! Here, in this very interesting video Paul Romer (of new growth theory fame) asks the question: can we form rules of technological competition in markets that factors out the traditional Schumpeterian "destruction" part of "creative destruction"?


  1. hey, dan, thanks for the links.

    a question, though. what does it mean to give nature "rights?" can we extend the human concept of a "right" onto a non-human entity? what dies it really mean for nature to have agency?

    i guess i don't really understand the argument because i don't know what it means for nature to have rights in the sense that (some) humans do. let me know your thoughts.


  2. **"Someone needs to represent the rivers, forests"** (from the article). And, **damages would be awarded in the case that the environmental entity wins.**

    Presumably the environment could hold people accountable for their policies through the use of a prosecutor in court, and I guess this is what I mean by agency, but it's a bad choice of a word in retrospect. Initially, I was unclear as to how I could formulate my problems with the article so I used that term sloppily.

    Whether we can actually give the environment rights and what that actually means (aside from the perspective of policy measures) is a tough question. In fact, aside from "why not" I don't think I can give you a legitimate legal reason for doing so. But, isn't the argument for environmental rights in the same vein as the argument animal rights? I can't necessarily give a clear explanation for that either, but we can appeal to notions of morality, communal understandings of what is "humane", etc.

    This gets me thinking about the individualism vs. social sciences debate. To what extent are our freedoms and rights defined by the society in which we live and to what extent are our rights "absolute", irrespective of any society we are in? The debate is important here because if we admit that our freedoms and rights are socially constructed then it's possible to see the sphere expand (or contract) in a democratic society. I don't want to take a stand here, since there are problems with the extreme view on either side, but that fact alone does not preclude debate on the issues.

    For example -- society is constantly faced with redefining what constitutes private property vs. common property (from land to water to products of the digital age). Property is in no way defined absolutely in society and that calls into question what "private property" actually is.

    Or, perhaps I'm off on a tangent? :)

    Thanks for the comment Alyssa,

  3. Maybe this is tangenting off Dan's tangent and taking it where you don't want to go but...

    1. I don't think the trick of rights of the environment falls into the same category as animal rights. The animal rights argument(s) is on a basic level motivated through the precedent of human rights. Human animals and other animals are both animals. In some cases humans may be given rights non-human animals may not. Being a human as opposed to a dolphin is a significant difference when it comes to voting or freedom of religion. However, being a dolphin as opposed to a human does not seem as significant when it comes to basic rights of life. So at least in many of the basic arguments, animal rights is just considered an extension of human animal rights. Environmental rights seems like a completely different thing.

    2. You say, "The debate is important here because if we admit that our freedoms and rights are socially constructed then it's possible to see the sphere expand (or contract) in a democratic society." Now isn't the expandability and "contractability" of rights and freedoms within society as absolutely a solid and undeniable historical fact as possible. You say there are problems with the "extreme view" of this but can we think of any right that has not been subject to expansion/contraction. Could there be any argument against it?

  4. Joe,

    I see where you're coming from with both of these points. I'd never heard that specific argument before in (1) for animal rights. I guess it's all a little new to me: my brother (11) recently decided he's a vegetarian, and he does it because he thinks killing animals is mean under any circumstances. I wonder if there exist towns/cities/states that have outlawed hunting based on the logic of the argument you presented. And if not, how could some places support environmental rights in this way but not animal rights? It truly does seem to be a completely different issue as you point out.

    On (2) -- you're right. I was thinking about the extremist libertarian view, viewing rights to, say, property as absolute, etc. But, these arguments are pretty weak which is why I think there are problems with it. And, I don't like to take the "extreme view", usually :)