Monday, October 18, 2021

Rawls@4°C

The “veil of ignorance” thought experiment devised by the philosopher John Rawls has long haunted law school seminar rooms and lecture halls. And for good reason. In his ambitious 1971 book, A Theory of Justice, Rawls offered a way to determine just principles of law from a purely selfish perspective. What would he have to say to us in the era of climate change?

Imagine, he says, that you are the lawgiver operating today. If acting purely from self-interest, one would expect you to establish laws that favor you and your friends/family/colleagues. No surprise that we see this around us every day. Rawls’s thought experiment, though, changes the game. You are still the lawgiver, but you are now operating behind a veil of ignorance. Once you have established the laws and removed the veil, you will then learn whether you are rich or poor, white or black, young or old, a citzen of France or Bangladesh, etc. 

Rawls argues that, operating in ignorance of your identity, you will choose principles that ensure the fair and equitable allocation of rights, duties, and opportunities among everyone in the society. Since you don’t know who you will be, best to provide for every possibility and favor people equally. 

Professor Edith Brown Weiss took Rawls’ veil of ignorance one step further, asking what it means for sustainable development. In her version, you not only do not know who you are, you also do not know when in the future you will live. It could be in the present, or three or six generations hence. If you were negotiating under this veil of ignorance, what types of rules would you want to impose? 

In this framing, our obligations to future generations become immediate. Professor Weiss proposes a principle of “intergenerational equity” that would seek to ensure future people will “inherit the Earth in as good a condition as did their ancestors and with at least comparable access to its resources.” Since you don’t know who you will be, best to provide for every possibility and favor people equally, now and in the future.

Let’s play this mind game a little further. Imagine, if you will, that you are still the ruler operating behind a veil of ignorance—you do not know who you will be or when in the future you will be. But, and here’s the twist, you do know that the world is unavoidably on a path to 4oC over the next 200 years. You could live anywhere on that path—2oC? 3oC? 4oC?—you don’t know. With this knowledge, what laws would you establish today to best ensure a fair and equitable society over the next 200 years of climate change? And how would these be different than Professor Weiss’s framing for sustainable development?

The climate change veil of ignorance changes the game in two important respects. First, although scientists can develop rough scenarios of what the world experiences along the climate change path, significant uncertainty remains, especially at local scales. You’ll have to design rules for the future now without a firm grasp of what the future looks like for many people. Second, it is more likely than not that climate conditions for many people will deteriorate, making it nearly impossible to set up rules in the present that will ensure future generations inherit an earth in as good a shape as prior generations experienced. You can’t stop sea-level or temperatures from rising,so you can’t satisfy the goal of the Weiss thought experiment.

These constraints change the kind of thinking that Rawls and Weiss expected of their rulemaker in three ways. First, given the 200 years of vastly changing conditions that lie ahead, the rules you design today must be rapidly adaptable as predicted changes evolve and unforeseen changes arise. If you wind up living in the 3oC world, you likely would not want to be bound by rules that applied in the 1.5oC world. So you must design an adaptive governance regime, not a fixed set of rules with the hope of locking in socially just conditions in the present and going forward.

Second, you'll need to anticipate tipping points and nonlinear change trajectories without knowing when they will be triggered or what the other side looks like. When will massive domestic migration start, and where do the migrants go? What if you are one of those migrants? Your adaptive governance regime will need to include a substantial planning and monitoring component using updated scenario projections—what social scientists refer to as anticipatory governance.

Finally, in addition to the resource consumption tradeoff dilemmas that sit at the heart of Weiss’s exercise, your rules will also require an ongoing process for determining how much to invest at any given time in protective adaptation measures for future generations. What if you live in the future as a resident of a city that did not build adequate flood control infrastructure or heat wave relief opportunities? But how much should a previous generation have invested? You can't possibly make all those decisions in the present—there’s too much uncertainty. The adaptive-anticipatory governance regime you design today thus must focus not only on sustainable resource conservation but also on capacity, ensuring continuous decision making for provision of physical and social adaptation infrastructure.

In summary, the climate change veil of ignorance will demand a much more fluid governance process, one that continually anticipates unforeseeable change, nimbly adapts the rules, and manages over long time frames for adaptation measures that equitably protect future generations. The fairness question will not be how to ensure future generations enjoy the same quality of life, but how to protect those groups (including possibly you) that will be much worse off.

- JB Ruhl, David Daniels Allen Distinguished Chair in Law, Vanderbilt Law School.

- James Salzman, Donald Bren Distinguished Professor of Environmental Law, joint appointment, the Bren School and UCLA Law School.

https://lawprofessors.typepad.com/environmental_law/2021/10/rawls4c.html

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