Sustainability is the Answer - Now What Was the Question?

Explanations for our inability to control the destructive impacts of human activities tend to focus a narrative of power — too many powerful actors are making too much money from business as usual and thus use their power to prevent change. Under this framing, law might be an agent for change — a way to blunt raw economic power through democratic mechanisms. And, indeed, this equalizing role of law is often celebrated as a tool for advancing sustainability. But, law’s ability to limit or shape the array of possible private choices is a double-edged sword. It just as readily limits our ability to imagine alternatives to the choices currently being made. While law and legal systems can, in theory, play the role of change agent, law can also cloak the status quo in a sense of inevitability. Most law, including environmental law, rests on an economic pre-commitment to dividing the natural world into discrete, ownable ‘resources’ available for exploitation. Law’s presumed neutrality, and its a priori nature are mustered to support this pre-commitment as though it were a universally-accepted, quasi-scientific truth about the purpose of legal systems. Yet, that characterization of our world is in fact a fraught, highly-contested value choice. By obscuring this starting point, law can be used to paint the existing array of choices as the only possible choices. Sustainability must therefore tailor itself to what already exists. The purpose of law dwindles to promoting a smoothly functioning market, rather than promoting justice or ensuring sustainability. It is then a small step to concluding that things have to be more or less the way they are. But, we can reclaim law’s transformative power. Law can aspire to much more than merely oiling the proverbial machine. Law creates the structure, the frame, within which private activity takes place, while at the same time law is shaped by those private activities. This reflexive nature means that law as an institution is uniquely situated to both shape and respond to the challenges of sustainability.