Tuesday, August 18, 2015
Individual and collective decisions about the use of land are fundamentally normative decisions, whether consciously made on the basis of a set of ethics and norms or reached through governance systems with implicit, imbedded normative underpinnings. What do ethicists have to say about land use that could be interesting to land use legal scholars? Quite a lot, it turns out.
If you have time to read only one book on the topic, I’d highly recommend Timothy Beatley, Ethical Land Use: Principles of Policy and Planning (Johns Hopkins University Press 1994). When I taught a land use seminar at Chapman University School of Law, I assigned this 300-page paperback book that covers land use from a diverse range of ethical perspectives. The outline of the book is as follows:
Part I: Ethical Framework
1. Land-Use Policy and Ethical Choices
2. The Nature of Ethical Discourse about Land Use
Part II: Sets of Land-Use Ethics and Obligations
3. Utilitarian and Market Perspectives on Land Use
4. Culpability and the Prevention of Land-Use Harms
5. Land-Use Rights
6. Distributive Obligations in Land Use
7. Ethical Duties to the Environment
8. Land-Use Obligations to Future Generations
Part III: Ethics and Individual Liberties
9. Paternalism and Voluntary Risk-taking
10. Expectations and Promises in Land-Use Policy
11. Private Property, Land-Use Profits, and the Takings Issue
Part IV: Ethics, Community, and Politics
12. Defining Life-Style and Community Character
13. Duties beyond Borders: Interjurisdictional Land-Use Ethics
14. The Ethics of Land-Use Politics
Part V: Conclusions
15. Principles of Ethical Land Use
Of course, many of you were probably expecting me to recommend Aldo Leopold’s writings on his land ethic, which are wonderful and well worth reading. Leopold urged a holistic view of the land community as encompassing both nature and humans, and a conservation ethic in how land is used and managed. The classic is Aldo Leopold, A Sand County Almanac And Sketches Here and There (Oxford University Press 1949), but other collections of his writings are also worth reading, including For the Health of the Land (edited by J. Baird Callicott and Eric T. Freyfogle; Island Press 1999), and The River of the Mother of God and Other Essays by Aldo Leopold (edited by Susan L. Flader and J. Baird Callicott; University of Wisconsin Press 1991). Julianne Lutz Newton wrote an exciting biography of Leopold: Aldo Leopold’s Odyssey: Rediscovering the Author of A Sand County Almanac (Island Press 2006). Writings by Wendell Berry and Wallace Stegner, discussed in a previous blog post, also articulate a land and environmental conservation ethic.
As many of you know, legal scholar Eric Freyfogle at the University of Illinois has written a number of highly important interdisciplinary books that integrate land ethics (including the writings of Leopold, Berry, historian Donald Worster, and others) with legal issues. My favorite remains Bounded People, Boundless Land: Envisioning a New Land Ethic (Island Press 1998), which is unusually articulate, inspiring, and engaging. Eric has commented on several occasions that he considers some of his later works his best writing, and all are certainly excellent and well worth reading. Among them are: The Land We Share: Private Property and the Common Good (Island Press 2003), Why Conservation Is Failing and How It Can Regain Ground (Yale University Press 2006), and On Private Property: Finding Common Ground on the Ownership of Land (Beacon Press 2007). Still, I stick by my special regard for his Bounded People, Boundless Land book.
J. Baird Callicott is a philosopher who has built on Leopold and yet gone beyond Leopold’s perspective with a strongly non-anthropocentric viewpoint. His books are well worth reading, including In Defense of the Land Ethic (State University of New York Press 1989) and Beyond the Land Ethic: More Essays in Environmental Philosophy (State University of New York Press 1999). Three other environmental ethics classics with relevance to land use are Holmes Rolston III, Environmental Ethics: Duties to and Values in the Natural World (Temple University Press 1988), Bryan G. Norton, Toward Unity among Environmentalists (Oxford University Press 1991), and Laura Westra, An Environmental Proposal for Ethics: The Principle of Integrity (Rowman & Littlefield 1994).
Despite the trenchant critique and normative guidance found in many writings on land ethics and conservation philosophies, the reality is that the land use system in the United States is characterized by pragmatism and ethical pluralisms at best. I discussed this point in my article The Structure of the Land Use Regulatory System in the United States, 22 Journal of Land Use and Environmental Law 441 (2007), available at SSRN: http://ssrn.com/abstract=1020305. Nonetheless, important ethical imperatives can be found in pragmatic perspectives on land use, as explored in an outstanding book by Ben A. Minteer: The Landscape of Reform: Civic Pragmatism and Environmental Thought in America (MIT Press 2006). Minteer examines the ideas of four major land-and-environment thinkers and reformers in the American 20th Century – Liberty Hyde Bailey, Lewis Mumford, Benton MacKaye, and Aldo Leopold – to illuminate an environmental pragmatism focused more on civic and policy reform than on picking sides in the anthropocentric/land-use versus ecocentric/environmental-preservation debates. I highly recommend this informative and well-written book.
By now (if you made it this far!), you’ve probably noticed that most of these writings involve environmental ethics and don’t really delve too much into social justice, distributive justice, procedural justice, and the like. I will tackle some of those issues, albeit mostly at the land use-environment intersection, in my next post on interdisciplinary readings in environmental justice and land use.
Coming Next: Environmental Justice and Land Use