Modest pragmatic lessons for a diverse and incoherent environmental law

Oxford Journal of Legal Studies

Volumn 33, Issue 1, 2013, Pages 103-131

  Pedersen, Ole W ^a  

^a NEWCASTLE UNIVERSITY   (United Kingdom)

Author keywords

Cultural cognition; Environmental law; Pragmatism; Social psychology

Indexed keywords

EID: 84874529206     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gqs026     Document Type: Article

References (247)

1. For, amongst other things, a methodological examination see Elizabeth Fisher and others, 'Maturity and Methodology: Starting a Debate about Environmental Law Scholarship' (2009) 21 JEL 213. For an attempt to identify theoretical foundations
2. Sean Coyle and Karen Morrow, The Philosophical Foundations of Environmental Law: Property Rights and Nature (Hart 2004). For a conceptual analysis
3. Todd S Aagaard, 'Environmental Law as a Legal Field: An Inquiry in Legal Taxonomy' (2010) 95 Cornell L Rev 22
4. Mark Sagoff, The Economy of the Earth: Philosophy, Law and the Environment (2nd edn, CUP 2008
5. Cormac Cullinan, Wild Law: A Manifesto for Earth Justice (2nd edn, Green Books 2011).
6. Fisher and others (n 1); Aagaard (n 1).
7. See Cass Sunstein, Legal Reasoning and Political Conflict (OUP 2000) 58
8. (Arguing that, in 'law, as in politics, disagreement can be a productive and creative force, revealing error, showing gaps, moving discussion and result in good directions'.)
9. Christopher L Kutz, 'Just Disagreement: Indeterminacy and Rationality in the Rule of Law' (1994) 103 Yale LJ 997-999
10. (Arguing that 'the conflict and indeterminacy that is inherent in the law is both ineradicable and deeply valuable to a self-scrutinizing moral and political culture').
11. One reason for favouring a more modest approach is that, as the disciplinary foundations of environmental law are still developing, we are better served by what Simmonds calls a minimalist approach or a 'clarificatory enterprise' seeking to provide 'a foundation for conceptual clarification'. NE Simmonds, 'Bringing the Outside In' (1993) 13 OJLS 147-155
12. Richard Lazarus observes that 'Environmental law cannot be a simple matter because the objects of its concern, the ecosystem and the human activities causing its degradation, are themselves not simple.' The Making of Environmental Law (University of Chicago Press 2008) 6.Richard J Lazarus
13. See Environmental Protection Act 1990, s 1(2).
14. See generally Stuart Bell and Donald McGillivray, Environmental Law (7th edn, OUP 2008) 20-3
15. Lazarus (n 5) for a US perspective.
16. In particular the creation of the US EPA in 1970 and the establishing of the Royal Commission on Environmental Pollution in 1970 seem to fit this description. For policy and legislative initiatives see First Action Programme on the Environment of the European Community [1972] OJ C112 (EC); National Environmental Policy Act 42 USC s 4321; Clean Air Act 42 USC s 7401; Control of Pollution Act (UK).1974
17. Richard Macrory, 'Environmental Law: Shifting Discretions and the New Formalism' Reprinted in Richard Macrory, Regulation, Enforcement and Governance in Environmental Law (Hart 2010) 354-361
18. Elsewhere Macrory puts these developments down to: a demand for consistency in interpretation and administrative application of legal controls; developments in techniques of measurement; a public lack of confidence in discretion; and a need for certainty. See Richard Macrory, 'Loaded Guns and Monkeys-Responsible Environmental Law' also reprinted in Macrory, Regulation 377.
19. An example of judiciaries playing the role of 'norm entrepreneurs' is arguably found in the ECJ's decision in Case 240/83 Association de défense des bruleurs d'huiles usages (ADBHU) [1985] ECR 531
20. In this case the court described environmental protection as an 'essential aim' of the Community despite it not being inserted into the Treaty until two years later. Francis Jacobs describes this as 'judicial anticipation' in Francis Jacobs, 'The Role of the European Court of Justice in the Protection of the Environment' (2006) 18 JEL 185.
21. 2 AC 264 (HL) 305 (Lord Goff).1994
22. Edward L Rubin, 'Law and Legislation in the Administrative State' (1989) 89 Colum L Rev 369.
23. Environmental Permitting (England and Wales) Regulations 2010, SI 675 2010.
24. Rubin (n 12) 372-4.
25. Examples are arguably found in Levy v Environment Agency EWHC 1663 (Admin), [2003] Env LR 11; Secretary of State for Environment, Food and Rural Affairs v Downs [2009] EWCA Civ 664, [2010] Env LR 7. Another example can be seen in American Electric Power Co v Connecticut 131 SCt 2527, 2539 (2011), where Justice Ginsburg observes that the EPA '[is] best suited to serve as primary regulator of greenhouse gas emission. The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc case-by-case injunctions. Federal judges lack the scientific, economic, and technological resources any agency can utilize.'2002
26. Fisher and others (n 1) 219
27. A Dan Tarlock, 'The Future of Environmental Rule of Law Litigation' (2002) 19 Pace Envtl L Rev 575.
28. Fisher and others (n 1) 220.
29. David A Westbrook, 'Liberal Environmental Jurisprudence' (1993) 27 UC Davis L Rev 619-621.
30. United Kingdom Environmental Law Association, The State of UK Environmental Legislation in Is there a Case for Reform? (London 2011). The report points to the problem of defining a meaning of 'waste' as an example of incoherence.2011
31. Coyle and Morrow (n 1).
32. For a historical examination of US environmental law, see Jedediah S Purdy, 'The Politics of Nature: Climate Change, Environmental Law and Democracy' (2010) 119 Yale LJ 1122.
33. Lon L Fuller, 'The Case of the Speluncean Explorers' (1949) 62 Harv L Rev 616
34. JB Ruhl, 'The Case of the Speluncean Polluters: Six Themes of Environmental Law, Policy and Ethics' (1997) 27 Envtl L 343.
35. Ruhl (n 25) 370.
36. Aagaard (n 1) 256
37. Where he further argues that 'these values and interest may conflict. Thus environmental protection is not monolithic'.
38. This point can be broken down even further highlighting the individualistic nature of such values. For example, what value should be attached to, for example, the individual animal forming a part of the wider ecosystem? Inevitably, some people are inclined to prefer ideas of intrinsic valuation or existence valuation when answering such questions whereas others would subscribe to ideas grounded in instrumental values.
39. Jenny Steele, Risks and Legal Theory (Hart 2004) 160.
40. Giddens observes that '[t]here is no risk which can even be described without reference to value.. When there is a clash of different types of risk, there is a clash of values and a directly political set of questions.' See Anthony Giddens, 'Risk and Responsibility' (1999) 62 MLR
41. Heyvaert argues that the 'process of risk identification is therefore simultaneously one of selection, involving controversial normative judgement
42. Veerle Heyvaert, 'Governing Climate Change: Towards a New Paradigm for Risk Regulation' (2011) 76 MLR 817-822.
43. See for a general overview of individual risk attitudes Thomas Dohmen 'Individual Risk Attitudes: New Evidence from a Large, Representative, Experimentally-Validated Survey' (2005) IZA
44. Elke U Weber, Ann-Renée Blais and Nancy E Betz, 'A Domain-Specific Risk Attitude Scale: Measuring Risk Perceptions and Risk Behaviours' (2002) 15 J Behaviour Decision Making 263.
45. Bernadette C Hayes, 'Gender, Scientific Knowledge, and Attitudes toward the Environment: A Cross-National Analysis' (2001) 54 Political Research Quarterly 657
46. Paul Slovic, The Feeling of Risk (Earthscan 2010).
47. Richard J Bord and Robert E O'Connor, 'The Gender Gap in Environmental Attitudes: The Case of Perceived Vulnerability to Risk' (1997) 78 Soc Sci Q 830.
48. Jan M Gutteling and Oene Wiegman, 'Gender-Specific Reactions to Environmental Hazards in the Netherlands' (1993) 28 Sex Roles 433.
49. Charles J Brody, 'Differences by Sex in Support for Nuclear Power' (1984) 63 Social Forces 209.
50. Branden B Johnson, 'Gender and Race in Beliefs about Outdoor Pollution' (2002) 22 Risk Analysis 725.
51. James Flynn, Paul Slovic and CK Mertz, 'Gender, Race, and Perception of Environmental Health Risks' (1984) 14 Risk Analysis 1101
52. Melissa L Finucane 'Gender, Race, and Perceived Risk; The ''White Male Effect'' ' (2000) 2 Health, Risk & Society 159.
53. See Robert E Jones, 'Black Concern for the Environment: Myth Versus Reality' (1998) 11 Society and Natural Resources 209 (dispelling myths that white populations are overall more concerned with the environment than black populations)
54. Paul Mohai and Bunyan Bryan, 'Is There a ''Race'' Effect on Concern for Environmental Quality?' (1998) 62 Public Opinion 475
55. Richard J Lazarus, 'Pursuing ''Environmental Justice'': The Distributional Effect of Environmental Protection' (1993) 87 Nw U L Rev 787.
56. We should note, however, that not all biases and heuristics are necessarily counterproductive. In fact, some might be inherently beneficial
57. Susan A Bandes, 'Emotions, Values, and the Contraction of Risk' (2008)
58. U Pa L Rev 421, 423 (arguing that such emotions perform important roles in some instances: 'in much simpler times, crude categories based on fear of strangers or tribal loyalty might have adequately identified who we should avoid or who we should trust'.)
59. Daniel Kahneman, Thinking, Fast and Slow (Allen Lane) generally and 90 referring to this as 'basic assessment'.2011
60. http://www.culturalcognition.netaccessed March 1 2012
61. Dan M Kahan 'Culture and Identity-Protective Cognition: Explaining the White Male Effect in Risk Perception' (2007) 4 J Empirical Legal Studies 465.
62. From a philosophical point of view, this has strong similarities with what Derek Parfit calls 'agent-relative' theories. This is used to describe the situation where the moral aims of a normative theory are contingent upon the agent rather than being a common theory
63. Derek Parfit, Reasons and Persons (OUP 1984) 27
64. Thomas Nagel, The View from Nowhere (OUP 1986) 152-3.
65. The cultural theory of risk is in this sense linked to the concept of motivated reasoning
66. Ziva Kunda, 'The Case for Motivated Reasoning' (1990) 108 Psychological Bulletin 480
67. Kahan and others (n 41) 483
68. The findings were largely echoed across questions relating to gun control, abortion, and commerce and technology.
69. See eg Douglas and Wildavsky (n 42)
70. Mary Douglas, 'Cultural Bias' in Mary Douglas, In the Active Voice (Routledge Kegan Paul 1982
71. Mary Douglas, Natural Symbols: Explorations in Cosmology (Routledge 2003
72. Dan M Kahan and Donald Braman, 'Cultural Cognition and Public Policy' (2006) 24 Yale L & Pol'y Rev 147, 149-52
73. Timothy O'Riordan and Andrew Jordan, 'Institutions, Climate Change and Cultural Theory: Towards a Common Analytical Framework' (1999) 9 Global Environmental Change 81.
74. John S Dryzek, The Politics of the Earth: Environmental Discourses (OUP 1997
75. The four discourses are: Environmental Problem Solving (which is anchored in maintaining a political-economic status quo); Survivalism (which maintains that continued economic and population growth is unsustainable); Sustainability (which seeks to combine economic and environmental values); and Green Radicalism (which rejects the basic ethos of an industrial society).
76. Dryzek (n 48) 12-15.
77. Dryzek (n 48) 15-16.
78. Dan M Kahan, Donald Braman and Hank Jenkins-Smith, 'Cultural Cognition of Scientific Consensus' (2011) 14 J Risk Research 147.
79. These findings were echoed in another study relating to the risk associated with the HPV vaccine. See Dan M Kahan and others, 'Who Fears the HPV Vaccine, Who Doesn't and Why? An Experimental Study of the Mechanisms of Cultural Cognition' (2010) 34 Law and Human Behavior 501.
80. See eg Anthony Leiserowitz, 'Climate Change Risk Perception and Policy Preferences: The Role of Affect, Imagery, and Values' (2006) 77 Climate Change 45
81. The American Psychological Association, Psychology and Global Climate Change: Addressing a Multifaceted Phenomenon and Set of Challenges (Washington 2010) 29-40.
82. Dan M Kahan 'The Tragedy of the Risk-Perception Commons: Culture Conflict, Rationality, and Climate Change' (2011) Temple University Legal Studies Research Paper 2011-26http://papers.ssrn .com/sol3/papers.cfm?abstract_id=1871503
83. Mike Hulme, 'You've Been Framed: Six New Ways to Understand Climate Change' (The Conversation, 5 July 2011http://theconversation.edu.au/youvebeen- framed-six-new-ways-to-understand-climate-change-2119
84. See Robert J MacCoun, 'Biases in the Interpretation and Use of Research Results' (1998) 49 Annual Rev Psych 259.
85. Leon Festinger, A Theory of Cognitive Dissonance (Stanford University Press 1957
86. Scott Plous, The Psychology of Judgment and Decision Making (McGraw-Hill 1993).
87. The classic example is the smoker denying that smoking is an unhealthy practice despite a wealth of evidence supporting this
88. Elliot Aronson, Timothy Wilson and Robin Akert, Social Psychology (Prentice Hall 2002) 176
89. While such behaviour seems prima facie irrational, it may be deemed rational in certain situations. For example, where the denial of dissonance-inducing information takes place in a group setting and the group values such information, the denial of dissonance-inducing information may lead to the individual gaining a higher status within the group. See eg Ole W Pedersen, ' ''Climategate'', Group Polarisation and Hockey Tricks' (2010) 18 Environmental Liability 11.
90. See Leon Festinger, Henry W Riecken and Stanley Schachter, When Prophecy Fails (Pinter & Martin 2008) 29.
91. Carol Tavris and Elliot Aronson, Mistakes were Made (But Not by Me) (Harcourt Books 2007) 42.
92. This is particularly prevalent in certain geographical areas and certain income groups
93. Steven E Sexton and Alison L Sexton, 'Conspicuous Conservation: The Prius Effect and Willingness to Pay for Environmental Bona Fides' (2011) Unpublished manuscript on file with author
94. Vladas Griskevicius, Bram Van den Berg and Joshua M Tybur, 'Going Green to be Seen: Status, Reputation, and Conspicuous Conservation' (2010) 98 J Personality & Social Psychology 392.
95. Tavris and Aronson (n 60) 18
96. In worst case scenarios this behaviour may even lead to so-called 'monologue creep'.
97. Patrick O'Callaghan, 'Monologism and Dialogism in Private Law' (2010) 7 J Jurisprudence 405, 422-23.
98. Tavris and Aronson (n 60) 42
99. Joyce Ehrlinger, Thomas Gilovivh and Lee Ross, 'Peering into the Bias Blind Spot: People's Assessment of Bias in Themselves and Others' (2005) 31 Personality and Social Psychology Bulletin 68
100. Kahneman (n 40) 103-4
101. In effect, this amounts to individuals operating according to so-called exclusionary reasons, providing 'grounds for excluding other relevant reasons from consideration when deciding how to act in particular situations
102. Richard Mullender, 'Law, Morality and the Egalitarian Philosophy of Government' (2009) 29 OJLS 389-391.
103. Timur Kuran and Cass Sunstein, 'Availability Cascades and Risk Regulation' (1999) 51 Stanford L Rev 683.
104. See Michiel Schwartz and Michael Thompson, Divided We Stand: Redefining Politics, Technology and Social Choice (Harvester Wheatsheaf 1990
105. We find traces of this culturally anchored approach in some of Isaiah Berlin's work as well
106. Isaiah Berlin, 'The Pursuit of the Ideal' in H Hardy, The Crooked Timber of Humanity (Pimlico 2003) 18.
107. Douglas and Wildavsky (n 42) 7-8.
108. Here we can forge a link to what Brian Tamanaha calls the 'mirror thesis' used to describe the situation where the law reflects societal norms and customs
109. Brian Z Tamanaha, A General Jurisprudence of Law and Society (OUP 2001) 1-3.
110. Mary Douglas, How Institutions Think (Syracuse University Press 1986) 91.
111. See Aaron Wildavsky, 'Choosing Preferences by Constructing Institutions: A Cultural Theory of Preference Formation' (1987) 81 Am Pol Sci Rev 3.
112. See eg O'Riordan and Jordan (n 47).
113. Environmental Permitting (England and Wales) Regulations SI 2010/675.2010
114. Sanja Bogojević, 'Ending the Honeymoon: Deconstructing Emissions Trading Discourses' (2009) 23 JEL 443, 450-1.
115. See William Boyd, Douglas A Kysar and Jeffrey J Rachkinski, 'Law, Environment, and the ''Non-Dismal'' Social Sciences' (2012) University of Colorado Law Legal Studies Research Paper 12-01, 2http://papers.ssrn .com/sol3/papers.cfm?abstract_id=1991258
116. Arguing that 'the extant system of environmental law still reflects at bottom a collective choice about what kind of society the public wants').
117. Sheila Jasanoff, 'The Idiom of Co-Production' In Sheila Jasanoff (ed), States of Knowledge (Routledge 2004
118. Bruno Latour, We Have Never Been Modern (Harvard University Press 1993).
119. Jasanoff (n 77) (arguing that 'nothing significant happens in science without concurrent adjustments in society, politics or culture'); Schwartz and Thompson (n 67) 1 (arguing 'our view of politics, technology and social choice is one in which their clear separation is impossible.. because they all hinge crucially upon cognition').
120. Sheila Jasanoff, 'Afterword' in Jasanoff (n 77) 277
121. Roger Pielke Jr, The Honest Broker (CUP) and the works cited therein.2007
122. Bettina Lange, Implementing EU Pollution Control: Law and Integration (CUP 2008).
123. See eg Environment Act 1995, s 39, which makes it a statutory duty for the Environment Agency to take into account costs and benefits when exercising its powers 82 See also Douglas A Kysar, Regulating From Nowhere: Environmental Law and the Search for Objectivity (Yale University Press 2010) 11. Kysar observes that '[b]eneath omnipresent and seemingly innocuous invocations of ''economic analysis and sound science'' lie enormously challenging moral and political quandaries-quandaries that not only are inadequately resolved by the economic paradigm but also are beclouded by the paradigm's very presence.'
124. See eg Paul M Secunda, 'Cultural Cognition at Work' (2010) 38 Florida State University Law Review 107
125. Dan M Kahan, 'Foreword: Neutral Principles, Motivated Cognition, and some Problems for Constitutional Law' (2011) 125 Harv L Rev 1
126. Barbara Spellman and Frederick Schauer, 'Legal Reasoning' in Keith J Holyoak and Robert G Morrisson (eds), The Oxford Handbook of Thinking and Reasoning (2nd edn, OUP 2012). See also Peter Cane, 'Consequences in Judicial Reasoning' in J Horder (ed), Oxford Essays in Jurisprudence (OUP 2000) 55-9.
127. Secunda (n 83) 111.
128. Richard A Posner, How Judges Think (Harvard University Press 2008) 116
129. Kahan (n 83) 34-41.
130. Gabc?íkovo-Nagymaros Project (Hungary/Slovakia) (Separate Opinion of Vice President Weeramantry) ICJ Rep 7, 104.1997
131. Gabc?íkovo-Nagymaros (n 86) 97-104
132. Daniel Bodansky, The Art and Craft of International Environmental Law (Harvard University Press 2010) 198-9.
133. Douglas and Wildavsky (n 42) 36.
134. As cited in Cornel West, The American Evasion of Philosophy (The University of Wisconsin Press 1989) 42.
135. Louis Menand, The Metaphysical Club (Flamingo 2002
136. Anthony Kenny, Philosophy in the Modern World (Clarendon Press 2007
137. Due to his claim that the validity of a hypothesis is defined by subjecting it to hostile challenges and experimenting, John Stuart Mill is seen by some as harbouring pragmatic traits
138. Richard A Posner, Law, Pragmatism, and Democracy (Harvard University Press 2003
139. What is more, James dedicates his Pragmatism to Mill while observing that 'there is absolutely nothing new in the pragmatic method'
140. William James, Pragmatism (Longmans, Green and Co 1907) 50
141. Posner (n 91) 4
142. Generally Posner argues that philosophical pragmatism has little to contribute to law while still grounding his arguments in the works of in particular Dewey (see Posner (n 91) 35, 41
143. Posner (n 91) 13.
144. Two exceptions are John Dewey, 'Logical Method and Law' (1924) 10 Cornell LQ 17
145. John Dewey, 'The Historic Background of Corporate Legal Personality' (1926) 35 Yale LJ 655
146. Kelly A Parker, 'Pragmatism and Environmental Thought' Andrew Light and Eric Katz (eds), (Routledge 1996).Environmental Pragmatism
147. Brian Z Tamanaha, Realistic Socio-Legal Theory (OUP 1997) 26.
148. Tamanaha (n 96) 26.
149. See Larry A Hickman, 'Nature as Culture: John Dewey's Pragmatic Naturalism' In Light and Katz (eds) (n 94) 55.
150. Richard Rorty, 'Pragmatism, Relativism and Irrationalism' in Christopher J Voparil and Richard J Bernstein (eds), The Rorty Reader (Wiley-Blackwell 2010) 112
151. Grey refers to this as pragmatism's 'theory-guilt' whereby 'theory runs alongside rather than ruling over worldly practice
152. Thomas C Grey, 'Hear the Other Side: Wallace Stevens and Pragmatist Legal Theory' (1990) 63 S Cal L Rev 1569.
153. Richard Rorty, Contingency, Irony, and Solidarity (CUP 1989) 46.
154. Rorty observes that pragmatists favour anti-essentialism for two reasons: (i) it makes it impossible to formulate a lot of the traditional philosophical problems and (ii) it makes it easier to come to terms with Darwin. See Richard Rorty, Philosophy and Social Hope (Penguin Books 1999) 66
155. For a particularly eloquent link between Darwin and pragmatism see Menand (n 91) 120-8.
156. Rorty (n 99) 45.
157. James (n 91) 50.
158. As a result, Dewey argues that moral values change over time and must therefore be periodically reviewed. In this light, Dewey does not consider the questioning of moral values a sign of decay but rather a need
159. Jennifer Welchman, 'Dewey's Moral Philosophy' in Molly Cochran (ed), The Cambridge Companion to Dewey (CUP 2010).
160. John Dewey, 'The Development of American Pragmatism' In Larry A Hickman and Thomas M Alexander (eds), The Essential Dewey: Volume 1 (Indiana University Press 1998) 4.
161. Rorty (n 100) xxi
162. In this, Rorty kept an eye on the future in asserting that the worth of a particular good is derived from its utility. This is taken to mean it being 'useful to create a better future' (Rorty (n 100) 27).
163. Allan C Hutchinson, Dwelling on the Threshold (Sweet & Maxwell 1988) 13 Arguing 'there is no truth nor knowledge outside the dramatic context and idiom of history
164. Peter Gabel and Duncan Kennedy, 'Roll over Beethoven' (1984) 36 Stanford L Rev 1, 44-55
165. Where Gabel notes that 'a dominant change in that person's perception of the world-can only come through participation in a social movement, or a social group of some kind' 44
166. Rorty (n 100) xxv.
167. Posner (n 91) 100
168. That is, to Rorty, 'no description of how things are from a God's-eye point of view, no skyhook provided by some contemporary or yet-to-be-developed science, is going to free us from the contingency of having been acculturated as we were
169. Richard Rorty, Objectivity, Relativism, and Truth (CUP 1991) 13.
170. Tamanaha (n 95)
171. Rorty (n 100) 7
172. who saw truth as being a property of linguistic arrangements.
173. Gertz v Robert Welch 418 339-40 (1974)
174. British Chiropractic Association v Singh EWCA Civ 350, [2011] 1 WLR 133.2010
175. A particularly lucid example of this is found in Dewey's analysis of the act of thinking. Here Dewey alerts us to a process which shares obvious traits with the scientific method: 'Upon examination, each instance reveals, more or less, clearly, five logical steps: (i) a felt difficulty; (ii) its location and definition; (iii) suggestion of possible solution; (iv) development by reasoning of the bearings of the suggestions; (v) further observation and experiment leading to its acceptance or rejection; that is, the conclusion of belief or disbelief.' See John Dewey, How We Think (Dover Publications 1997) 72.
176. For a particularly insightful examination of fallibilism and pragmatism, see Heidi Li Feldman, 'Cardozo not Holmes, Fallibilism not Scepticism, Pragmatism not Legal Realism' (February 2012) Georgetown University Law Center http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2006155
177. Cited in Tamanaha (n 95) 29.
178. Posner (n 91) 37.
179. Karl R Popper, The Logic of Scientific Discovery (Hutchinson 1959) 16.
180. Dewey argues that this 'partly depends upon the presence of rival conjectures as to the best course to pursue or the probable explanation to favour, cultivation of a variety of alternative suggestions is an important factor
181. Dewey (n 112) 75.
182. Dewey (n 105) 8.
183. Rorty (n 100) 83.
184. The Vienna Convention on the Protection of the Ozone Layer (1985) 26 ILM 1516 and the Montreal Protocol on Substances that Deplete the Ozone (1987
185. Bodansky (n 88) 253-4.
186. For an application of the pragmatic argument to the problem of climate change in general see Rob Atkinson and others, 'Climate Pragmatism: Innovation, Resilience and No Regrets' (The Hartwell Group 2011http://thebreakthrough.org/blog/Climate_Pragmatism_web.pdf
187. Bodansky calls this the bottom-up approach which is contrasted by the Kyoto Protocol's top-down approach
188. Daniel Bodansky, 'A Tale of Two Architectures: The Once and Future UN Climate Regime' (2011) 43 Ariz St LJ 697.
189. Copenhagen Accord FCCC/CP/2009/L 7 18, December 2009 and Cancun Agreement Draft Decision -/ CP.16, FCCC/CP/2010/7/Add.1 11 December 2010.
190. For a general and highly illuminating discussion on this matter see the contributions in
191. Tim Jewell and Jenny Steele Law in Environmental Decision-Making (Clarendon Press 1998).
192. Tamanaha (n 95) 35
193. Tamanaha observes though that the strive for the middle way is likely to be unacceptable to those seeking a radical reform of the law as it inevitably leaves certain structures intact.
194. See eg James Bohman, 'Ethics as Moral Inquiry: Dewey and the Moral Psychology of Social Reform' In Cochran (ed) (n 104) 202.
195. Steven D Smith, 'The Pursuit of Pragmatism' (1990) 100Yale LJ 409-446.
196. Michael Sullivan and Daniel J Solove, 'Can Pragmatism be Radical? Richard Posner and Legal Pragmatism' (2004) 113 Yale LJ 687, 706
197. Steele likewise observes that 'at their best, deliberative processes could lead to the questioning of received views and the emergence of a coherent series public commitments'. See Steele (n 30) 185.
198. Dewey (n 112) 29.
199. Rorty (n 100) 93.
200. Smith (n 129) 411
201. Farber demonstrates how the 'moving knowledge frontier' is a phenomenon acutely present in environmental issues. See Daniel Farber, Eco-Pragmatism: Making Sensible Environmental Decisions in an Uncertain World (Chicago University Press 1999) 174.
202. See generally Cameron Hepburn, 'International Carbon Finance and the Clean Development Mechanism
203. Dieter Helm and Cameron Hepburn The Economics and Politics of Climate Change (OUP 2009
204. Noé 2, 'No more perverse incentives and windfall profits for HCFC22 production under CDM!' (Press Release, 6 November 2008) http://www.cdm-watch.org/wordpress/wp-content/uploads/2009/07/press20091208_noe21_ hfc23methodology.pdf
205. Posner (n 91) 34.
206. Cited in Rorty (n 99) 38.
207. Hirokawa argues that pragmatism is useful in environmental debates as 'such debates can be characterized as competing, irreconcilable perspectives that suggest conflicts between paradigms'
208. Keith Hirokawa, 'Some Pragmatic Observations about Radical Critique in Environmental Law' (2002) 21 Stan Envtl LJ 225-253
209. JB Ruhl, 'Working Both (Positivist) Ends toward a New (Pragmatist) Middle in Environmental Law' (2000) 68 Geo Wash L Rev 522.
210. Dewey cited in Welchman (n 104) 179
211. Cass Sunstein, 'Incommensurability and Valuation in Law' (1994) 92 Mich L Rev 779.
212. Rorty (n 100) 268.
213. Joseph William Singer, 'Property and Coercion in Federal Indian Law: The Conflict between Critical and Complacent Pragmatism' (1990) 63 S Cal L Rev 1821-1824.
214. Farber (n 134) 39 (who argues that certain environmental organisations often confuse private preferences with public opinion). Again, here the use of cost-benefit analysis becomes relevant as critics of such practices may point out that a cost-benefit analysis only succeeds on measuring private values while overlooking public goods. Dewey himself was sceptical of 'the idea that reason or thought should be reduced to being a servant of any interest which is pecuniary or narrow' (Dewey (n 105) 4).
215. Rorty defines 'final vocabularies' further by noting that these 'are words in which we formulate praise of our friends and contempt of our enemies, our long-term projects, our deepest self-doubts and our highest hopes. They are the words in which we tell, sometimes prospectively and sometimes retrospectively, the story of our lives.
216. Rorty (n 100) 13
217. Kenny above (n 91) 35
218. Feldman argues 'Pragmatism rejects the very idea of radical doubt but they embrace the possibility of mistake. We can have erroneous beliefs. We can have outmoded beliefs. In fact, absolutely any of our beliefs could turn out to be wrong
219. Feldman (n 113) 18.
220. See Simmonds (n 4)
221. Kahan (n 83) 58-66
222. Secunda (n 83) 140-8
223. (Putting forward an argument for judicial humility).
224. See also Steele (n 30) 189 (arguing that engagement in certain debates entails responsibilities on behalf of the participants. Primarily in relation to 'weigh[ing] possibilities and probabilities in order to determine which course of action best suits their purpose'). This would, in addition, go some way towards avoiding polarisation of environmental debates. See eg Douglas A Kysar and James Salzman, 'Environmental Tribalism' (2003) 87 Minn L Rev 1099 (arguing that environmental debates often take place along entrenched lines of a priori held opinions).
225. Popper argues that in these processes 'the other fellow has a right to be heard, and to defend his arguments
226. Karl R Popper David Miller A Pocket Popper (Fontana Press 1987) 43
227. Diana C Mutz, Hearing the Other Side (CUP 2006).
228. Amy J Cohen, 'Negotiation, Meet New Governance: Interests, Skills, and Selves' (2008) 33 Law & Social Inquiry 503, 523-4.
229. See also Mutz (n 148) ch 3 Who argues that this plays an important role in promoting democratic values).
230. Schwartz and Thompson Note that 'everything is bias' and that we are likely to be worse off without it
231. Schwartz and Thompson (n 67) 61.
232. See eg Kahan (n 83) 62-6.
233. See eg Smith (n 129) 425
234. (Criticising Posner's pragmatism for being akin to formalism). See also Louis Menand (ed), Pragmatism: A Reader (Random House 1997) xxv (arguing that 'it is part of the nature of pragmatism to decline the honour of becoming a ''school of thought''. Pragmatists have always been wary of the danger that pragmatism will turn into a discipline, that it will become just another one of the things professional thinkers ''do''.')
235. See eg Brian Z Tamanaha, Law as a Means to an End (CUP 2006) 64.
236. Ronald Dworkin, Justice in Robes (Harvard University Press 2006) 82.
237. Susan Haack, 'On Legal Pragmatism: Where does ''The Path of the Law'' Lead Us?' (2005) 50 Am J Juris 71-74.
238. Jack Balkin, 'The Top Ten Reasons to be a Legal Pragmatist' (1991) 8 Const Comment 351-351
239. Balkin states that 'if you're left-wing, you can finally find something to agree with Richard Posner about' and 'if you're right-wing, you can finally find something to agree with Frank Michelman about'.
240. Pierre Schlag, The Enchantment of Reason (Duke University Press 1998) 84.
241. James (n 91) 54.
242. Andreas Philippopoulos-Mihalopoulos, 'Looking for the Space between Law and Ecology' in Andreas Philippopoulos-Mihalopoulos Law and Ecology: New Environmental Foundations (Routledge 2011).
243. Posner, Rightly points out that pragmatism is not per se against theory or theorising.
244. Posner, Pragmatism (n 91) 77.
245. Nagel (n 43) 12
246. I am grateful to Richard Mullender for alerting me to this point. Dewey further reminds us that one central contribution of philosophy is to deliver 'criticism
247. John Dewey, Experience and Nature (Dover 1958) 411-13