On the deficiencies of the law

I continue to seek to motivate individual action. Yesterday, I came across the notion of proactive law, which is a growing school of thought, particularly in the European Union. Proactive law is "a future-oriented approach where the goal is to promote what is desirable and ex ante maximise opportunities while minimising problems and risks." This philosophy of law has, it seems, primarily been applied to creating a better business environment for people, such that "an optimal mix of regulatory means...best promote(s) societal objectives..." But it may not be terribly difficult to think about proactive law in the context of environmental law - given that we know there are environmental problems created by the way society functions, we may be able to pass enforceable legislation such that environmental harm is minimised through future societal actions. (There are of course issues with developing a dialogue with nature itself, unless people try to represent the views of nature.) Most environmental laws have been retrospective, setting legal boundaries of action because of past environmental harm. However, these laws do potentially grant authority to regulate future behaviour of people and businesses, just like the Clean Air Act (first adopted in 1970) was judged to be applicable to regulate greenhouse gas emissions a couple of years ago.

There seems to be an inherent contradiction between future-oriented law and the way humans have been behaving so far, because humans will likely continue to behave in the same way in the future. But with our behaviour, we have created over the past few hundred years a society whose understanding of its actions cannot be fully comprehended right now, and may never be. For example, what does it mean for our human relationships that we now have new forms communication that inherently limit time with other people? Such a question is hard to wrap our minds around, and we will not know the full consequences of such a change in momentum until many years have gone by. So how might we be able to create laws that bind us to a desired future outcome? Furthermore, the interesting thing about law is that it is made in the context of its time, given our sensibility of the issues facing us - the US Constitution was drafted in the late 18th century, and many of us know that there are significant issues surrounding the interpretation and validity of the Second Amendment today, which was adopted in 1791.

I write about this, because as I mentioned previously, the sentiments behind the law come out of the weaving of our collective moralities - in the end, the law may lose the force that a few of us might want it to have. But it is clear that personal actions now, in the present, can guarantee that at least our individual exoneration from the behaviour that may degrade the environment or trample on social justice now and in the future. We may never understand the outcomes of our actions given the complex web of interconnectedness today, but choosing not to participate in such behaviour guarantees that at least for us, such proactive law is superfluous and unnecessary.

On the law and being retrospective

This post ties back to my post from yesterday about risk. I found out today that the US EPA is going to now try to write regulations for new toxic chemicals, such as perchlorate, that have now been found in water supplies around the nation. (I never really knew how toxic rocket propellants were until I learned about them in my propulsion classes, and a few classes on explosions, explosives, propellants and pyrotechnics. I guess we are all naive to varying degrees.) Much has been made of the "precautionary principle," which basically states that if we don't know what the effects of doing something will be, we shouldn't do it. It is likely that there are always negative impacts of our actions, especially when scaled to millions or billions of people. With climate change, it has been argued that since we don't know what positive radiative forcing feedbacks may kick in with increasing greenhouse gas emissions, we should avoid pumping more greenhouse gases into the atmosphere. The precautionary principle makes sense to me, but it does not to many other people. (Similar arguments can be made for food and healthcare initiatives of the recent past.)


We live in a world where "freedom" of action is valued, especially if that "freedom" leads to job creation and profit for people. What this inevitably leads to is the acceptance of actions whose impacts are ill-defined and unknown. Once we grant this "freedom," it is hard to take that "freedom" back, or to regulate it, or temper it. (I can imagine how hard it must be to be a parent.) The "freedom" grows in magnitude like a chain reaction, rooting itself in our sensibilities and communities. Such rooting makes it difficult to move away the behaviour, just as it is difficult to break a bad habit. But we always realise that there are negative impacts to these "free" actions, and so we may therefore seek to regulate them, to temper them, through law. Such laws are by their nature retrospective, and not proactive. The goals of the regulators are then themselves tempered by the will of industry, and indeed we end up with weaker, retrospective law. Almost all of the environmental laws I can think of, including major pieces of legislation such as the Clean Air Act, Clean Water Act, and the National Environmental Policy Act, were all put in place retrospectively. I wonder what it would be like if we had proactive law more widely practiced. (Definitely read this document - various legal facets are very well articulated, and not in incomprehensible legalese.)


I think there are issues with such forward-looking approaches that may be far-reaching. I truly question whether it is biologically possible for human mentality to have evolved to fully comprehend the long-term impacts of our actions. Not long a time, on an evolutionary scale, has passed since we were hunter-gatherers. Our ability to think and envision may in fact be limited to such short time scales that we are in fact still mentally hunter-gatherers - shooting from the hip and making decisions that are "good" in the short term, but are inherently against the tide of nature in the long term.