An Ecological Approach to Regulatory Studies?

AuthorFiona Haines,Christine Parker
DOIhttp://doi.org/10.1111/jols.12083
Publication Date01 Mar 2018
JOURNAL OF LAW AND SOCIETY
VOLUME 45, NUMBER 1, MARCH 2018
ISSN: 0263-323X, pp. 136±55
An Ecological Approach to Regulatory Studies?
Christine Parker* and Fiona Haines**
Regulatory studies has been mainly occupied with addressing the
social and economic crises of contemporary capitalism through instru-
mentally and responsively rational approaches. This article asks how
regulatory scholarship can better respond to the ecological crisis now
facing our world and our governance systems alongside social and
economic crises. There are both possibilities and problems with instru-
mentally rational regulatory approaches that see human ecological
impact as an externality or market failure and socio-legal approaches
to regulatory studies that emphasize the need to attend to the social
and political aspects of regulation using a responsively rational
approach. A third big shift towards an ecologically rational approach
to regulatory studies is needed to comprehend our embeddedness
within ecological systems. An ecologically rational approach also calls
for an understanding of how multiple, diverse ways of sustainable
being can intersect with and challenge current regulatory regimes
dominated by an instrumentally rational approach.
INTRODUCTION
Regulatory studies has to date been mainly occupied with addressing the
global social and economic systems crises of contemporary capitalism.
1
Yet
capitalism and indeed human development now face the existential
136
*Melbourne Law School, University of Melbourne, VIC 3010, Australia
christine.parker@unimelb.edu.au
** School of Social and Political Sciences, Faculty of Arts, University of
Melbourne, VIC 3010, Australia
f.haines@unimelb.edu.au
We are grateful for comments on an earlier version to Bronwen Morgan and the other
participants at the workshop, `Between Activism and Enterprise: The Role of Law in
Redefining Growth and Prosperity in the New Economy' in August 2016 at the
University of New South Wales.
1 F. Haines, The Paradox of Regulation: What Regulation Can Achieve and What It
Cannot (2011).
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
challenge of `abrupt global environmental change' due to anthropogenic
pressure.
2
The emerging discipline of earth systems science aims to define a
`safe operating space for human societies to develop and thrive, based on our
evolving understanding of the functioning and resilience of the Earth
system.'
3
Taking earth systems seriously means recognizing that economics,
capitalism, and all human governance mechanisms can only continue to
operate within the ecologically safe zone for humans. While environmental
regulation and governance in the past might have defined pollution and use
limits for specific local waterways or airsheds and sought to limit environ-
mental impact at a local, regional, or even national level, it is now clear that
human activity is causing environmental change at a continental and
planetary level. Earth-system scientists suggest that we have already
transgressed three of nine `planetary boundaries' in which humanity can
safely operate ± climate change, biodiversity loss, and biogeochemical flows
(that is, nitrogen due to fertilizer use) ± meaning that global, catastrophic
enviro nmenta l change i s immine nt and may t rigger f urther g lobal
environmental change in the other boundaries.
4
In a very real sense, a
`defiant earth' may take away human life support systems.
5
Regulatory governance systems urgently need to adapt to ensure that
humanity ± including business and government ± operate within ecological
limits at a planetary scale whilst also still responding to social and economic
tensions and crises. Political scientists, lawyers, and sociologists of science
are all developing responses to this challenge with notions such as ecological
democracy,
6
earth jurisprudence,
7
the sustainocene,
8
ecolaw,
9
the new
climatic regime,
10
and many others all proposed as radically new ways of
thinking about how to govern well within planetary boundaries. This article
137
2 J. RockstroÈm et al., `Planetary Boundaries: Exploring the Safe Operating Space for
Humanity' (2009) 14(2) Ecology and Society, at
vol14/iss2/art32/>; W . Steffen et al., `Planeta ry Boundaries: Guiding H uman
Development on a Changing Planet' (2015) 347(6223) Science 1259855.
3 Steffen et al., id., p. 1259855-1.
4 id. See, also, the Millennium Ecosystem Assessment, Ecosystems and Human Well-
Being: Synthesis (2005) (prepared for the UN in 2000 and finding 15 out of 24 major
systems in decline).
5 See C. Hamilton, Defiant Earth: The Fate of Humans in the Anthropocene (2017).
6 J.S. Dryzek, Deliberative Democracy and Beyond: Liberals, Critics, Contestations
(2000); J. Keane, `The Greening of Democratic Politics' The Conversation, 16 May
2013, at .
7 C. Cullinan, Wild Law: A Manifesto for Earth Justice (2011); M. Maloney, The Role
of Regulation in R educing Consum ption by Indivi duals and Househ olds in
Industrialised Nations (2014).
8 T. Faunce, `Towards a Global Solar Fuels Project ± Artificial Photosynthesis and the
Transition from Anthropocene to Sustainocene' (2012) 49 Procedia Engineering 348.
9 F. Capra and U. Mattei, The Ecology of Law: Toward a Legal System in Tune with
Nature and Community (2015).
10 B. Latour, Facing Gaia: Eight Lectures on the New Climatic Regime (2017).
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School

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