National security law as a legal field?

[This one is a bit of a novelty post meant for the benefit of those of may be looking for a thought-provoking distraction during the holiday break….substantive posting resumes tomorrow]

Substitute the words “national security” for “environmental” or “environment” throughout the article below, and try to come to a decision regarding the question posed in the title of the short piece that appears in full below.  You’ll have to do some additional substitutions in Part II, as you will see, but just what the appropriate substitutions in that Part might be is itself an interesting inquiry.  Perhaps there’s a symposium to be had somewhere in these questions….  In any event, I offer this to those of you who are, perhaps, discreetly checking your email while hanging with family or whomever during a holiday break, or who otherwise have need for a thought-provoking distraction!

Environmental Law as a Legal Field: An Inquiry in Legal Taxonomy

via The Legal Workshop by Todd S. Aagaard on 12/21/09

What is environmental law?  When we describe a factual pattern, case, or rule as arising within environmental law, what associations do we mean to convey by that designation?  What, if anything, unifies environmental law?  Is environmental law a legal field, or just an amalgamation of laws arranged under a general subject matter?  Does environmental law function distinctively?  What differentiates environmental law from other legal fields?

Addressing such questions, whether in environmental law or in some other area, is not just academic rumination.  Classification is inherent and fundamental to the operation of law.  Justice requires consistency, and legal classifications enable consistency by designating categories of similar situations to which a common set of principles apply.  The category into which one assigns a situation thus may determine how the law applies to the situation.  The law works through categories, and one of the more important types of categories employed in the law is the legal field.  We designate legal fields—environmental law, labor law, criminal law—on the premise that those designations identify something important about how the law operates.

Thinking about what it means to designate a field of law and what is required for an area of law to be a legal field therefore carries the promise of improving our understanding of how the law functions.  When we understand how the law functions, we are better able to identify situations in which the law does not promote our desired objectives and to posit alternative approaches that may be more effective.  Constructing an analytical framework that brings together an area of law as varied and complex as environmental law will not itself resolve the recurring conflicts and difficulties that stymie environmental lawmaking, but it may well expose those conflicts and difficulties in a new light and help to frame the decisions facing legislatures, agencies, and courts, thereby facilitating more effective lawmaking.

What Makes an Area of Law a Legal Field?

A.     Legal Taxonomy and Legal Fields

We organize the law into distinct fields as a form of legal taxonomy, on the premise that such classification will facilitate an improved understanding of the law by identifying a pattern of characteristics associated with the field.  An organizational framework does the work of identifying such a pattern or patterns for a particular field.  The usefulness of the field varies depending on how well its pattern explains the various situations that the field encompasses.  This explanatory power, in turn, depends on several factors: (1) the extent to which situations that arise within the field exhibit a recognizable pattern; (2) the simplicity of the pattern; (3) the extent to which the pattern predominates within the field—that is, the extent to which characteristics exhibiting the pattern predominate over other characteristics that do not; (4) the extent to which a single pattern explains the various issues that arise within the field; and (5) the breadth of the field.

B.     The Allure, and Hazard, of Coherence

Taxonomy inevitably and inherently is, to some degree, a quest for coherence.  We employ taxonomy to identify a pattern that functionally coheres the field of study by adding some amount of logical order, consistency, and clarity.  An area of law’s coherence depends on, among other things, the extent to which it exhibits strong, recognizable patterns.  Several factors may influence the existence of such patterns: (1) an area of law is more likely to exhibit consistency if its factual patterns have a great deal of commonality; (2) areas of law in which a single value or interest has an influence are more likely to follow strong, recognizable patterns; and (3) centralized and well-coordinated lawmaking processes are more likely to produce law that follows a strong pattern, and thus areas in which law is created by such processes are more likely to exhibit strong, recognizable patterns.

Despite its benefits, coherence also has its disadvantages.  First and most important, seeking coherence can lead to imposing a framework that creates an appearance of coherence where coherence does not in fact exist.  An organizational framework that prioritizes coherence may do so at the cost of imprecisely and inaccurately characterizing the field by ignoring complexity and variation.  Second, chasing coherence discourages experimentation in lawmaking.  Coherent accounts of the law can become deterministic, helping to perpetuate the patterns they identify by obscuring and discouraging opportunities to depart from those identified patterns.  Third, attempting to create coherence through internal logic in the law may well be ineffectual.  Incoherence arises from a lack of consensus about how to approach a legal problem.  As long as a consensus is lacking, lawmaking institutions are unlikely to be able to force coherence, but instead may merely push incoherence into other areas.

The drawbacks of allowing some incoherence in a field, moreover, can easily be overstated.  Indeed, incoherence is itself worthy of study, and it is only by grouping materials together in a field that incoherence becomes identifiable and susceptible to studied examination.

C.     Dimensions of the Field

It is useful to conceptualize a legal field as the interaction among four underlying constitutive dimensions of the field: factual context, policy tradeoffs, values and interests, and legal doctrine.  Every area of the law operates within a factual context—a set of factual characteristics shared by situations that arise within the field.  These factual characteristics create certain policy tradeoffs, which dictate the range of options available to lawmaking institutions such as courts, legislatures, executive branch agencies, or the public.  The lawmaking institutions apply values and interests to choose among the available options dictated by the tradeoffs.  Legal doctrine—the law of the field—arises as the product of the lawmaking institutions’ choices among available options; that is, the application of values and interests to policy tradeoffs.  The following figure illustrates the relationship among the underlying constitutive dimensions—factual context, policy tradeoffs, values and interests, and legal doctrine:

Figure 1:  Conceptual Diagram of Generic Legal Field

Because the interplay among the underlying constitutive dimensions produces law, one can characterize an area of law by any or all of its underlying dimensions.  An ideal, complete analytical model of a legal field would identify interrelated patterns across all of the dimensions of the field.  Depending on the features of the area of law, however, this ideal may not be possible, and we may be limited to an incomplete model that addresses only those dimensions that exhibit recognizable patterns.

D.     Minimum Requirements

At a minimum, a legal field must exhibit two characteristics—commonality and distinctiveness—that may arise within any of the different underlying constitutive dimensions of the field: the factual context, the policy tradeoffs, the values and interests, or the legal doctrine.

A field of law must exhibit some degree of commonality, a characteristic or set of characteristics shared by the situations that arise within the area of law the field encompasses.  Commonalities establish patterns that cohere the field.

However useful in some respects it may be to conceptualize the law in terms of fields or categories, dividing the law generally into discrete fields risks obscuring larger principles or features that transcend the particular field.  For a legal field to be legitimate, therefore, the organizing features (patterns) common to the field must be distinct to the field.  Distinctiveness can arise directly from unique features of the field or from the unique interplay of otherwise non-unique features.

Why Is Environmental Law a Legal Field?

Having set forth an approach to thinking about legal fields generally, we can apply that approach to explicate my proposed use-conflict framework for understanding environmental law.

A.     Factual Context

Environmental problems exhibit two core factual characteristics that, in combination, are both common and distinct to environmental law.

First, environmental problems involve a physical resource that is in important senses publicly rather than privately valued, owned, and/or controlled: for example, public lands, air, water, and wildlife.  The interrelationship among uses of these physical public resources, and the special difficulties with attempting to regulate conflicts among uses in the environmental context, lie at the heart of all problems that arise in environmental law.  Some of the difficulties with addressing use conflicts in environmental law are not distinct to the environmental context, but rather arise in many common-resource situations that require collective management.  But several characteristics of environmental public resources make them particularly difficult to manage or to regulate collectively.  The environment, in its many forms, is traditionally an unregulated public resource, often associated with long traditions and customs of relatively uninhibited exploitation and open access.  Environmental public resources often have extremely numerous, valuable, and varied uses, which increases the probability and intractability of conflicts among users and decreases the likelihood of effective collective action.  The numerousness of users and the often complex lines of causation that create interrelationships among uses mean that, when conflicts among uses arise, it can be exceedingly difficult or impossible for any user harmed by the conflict to trace her harm to any particular other user or beneficiary.  The same factors—numerous users and complex causation—make it relatively easy for users to ignore, or not to recognize, their causal role in affecting another use.  The objectives of regulating the environment are often difficult to evaluate because they are not valued either economically as the subject of traditional market transactions or politically as the subject of traditional individual rights.

Second, everything in the environment, including humans, is part of a pervasively interrelated ecological system.  Scholars sometimes refer to this pervasive interrelatedness as the First Law of Ecology.  The pervasive interrelatedness among elements of the environment makes the environment a highly complex system that often is exceedingly difficult to manage.  The complexity and pervasive interrelatedness of the environment, however, make it extremely difficult to decide which activities need regulation to what extent to achieve a desired balance.  Any particular impact on a use of a resource may arise from numerous, difficult-to-identify causal events.  Conversely, every event may contribute to numerous, difficult-to-identify impacts.  Pervasive interrelatedness thus contributes to the extraordinarily complex lines of causation that often characterize environmental problems.  It may be difficult or impossible to determine with any precision a particular action’s innumerable causes and effects that ripple throughout the environment.  Not surprisingly, unintended consequences are a recurring phenomenon in environmental law.

B.     Policy Tradeoffs

The factual context in which environmental law operates—physical public resources subject to numerous uses connected by an intricate web of pervasive interrelationships—creates certain key policy tradeoffs that frame lawmaking choices.  Thinking in terms of the various competing uses that one can make of environmental resources provides a promising analytical framework for studying environmental lawmaking that carries several advantages over alternative frameworks.

First, thinking of environmental lawmaking in terms of use conflicts helpfully highlights the fundamental difficulties of the environmental context.  For example, environmental lawmaking requires lawmaking institutions to resolve tradeoffs among conflicting uses (or combinations of uses), but the immense complexity of the interrelationships in the environment renders our understanding of the environment incomplete and makes the precise nature of those tradeoffs difficult to ascertain.

Second, unlike many frameworks that scholars have proposed for thinking about environmental law, a use-conflict framework does not assume any particular baseline by which to judge alternative legal arrangements.  Nor does a use-conflict framework favor any particular use of the environment as normatively superior.  Instead, a use-conflict framework provides a relatively value-neutral approach that facilitates a full comparison of alternatives.  As suits its objective as a descriptive framework, it does not favor any particular alternative, but rather provides a useful basis for evaluating alternatives by applying a normative framework, or even for evaluating alternative normative frameworks.

C.     Values and Interests

Tradeoffs are only part of lawmaking; equally important are the values and interests that lawmaking institutions bring to bear on the relevant tradeoffs to make decisions that produce law.  Although we could frame our description of the values and interests in environmental lawmaking in terms of abstract, general principles or goals such as environmental protection or distributional equity, a descriptive analysis framed with abstract, generalized values and interests illuminates little about how environmental lawmaking functions.  A descriptive analysis of the values and interests in environmental lawmaking begins to yield meaningful insights only when we frame values and interests specifically enough to tie them to conflicting use demands on environmental resources.

D.     Legal Doctrine

Commenters and scholars have bemoaned the incoherence of environmental law as a body of legal doctrine.  I agree with their observation that environmental law appears to lack a set of fundamental, unifying substantive principles that explain environmental law, but not necessarily their concern that this incoherence is a serious blemish on the field.

First, the incoherence of environmental law provides fertile material for investigation and analysis.  We have much to learn from environmental law’s incoherence, and incoherence can play a constructive role in the development of environmental law.  Incoherence reflects the ongoing struggles of environmental law—with differences over values, extreme scientific uncertainty, and a scale and complexity that severely taxes, and may even surpass, the abilities of human understanding; incoherence is a functional and productive reaction to the extreme difficulties environmental law confronts.

Second, although we cannot reduce the substance of environmental law doctrine to a few fundamental principles, this does not mean that environmental law lacks a conceptual core.  Organizational frameworks such as the one proposed in this Editorial, which focus on patterns in dimensions of environmental law other than legal doctrine, can provide a coherent understanding of environmental lawmaking.  We can represent the relationship among these patterns with a conceptual diagram of environmental law, just as we earlier represented a conceptual diagram of a generic legal field:

Figure 2:  Conceptual Diagram of Environmental Law


It is impossible to reduce environmental law to a set of fundamental unifying legal principles.  Rather, the dominant characteristic of environmental lawmaking has been ad hoc muddling through, and this is reflected in the complexity and diversity of environmental law doctrine.  But this apparent doctrinal incoherence does not mean that environmental law lacks a conceptual core or that it is not a legal field.  An area of law is a legal field if it exhibits patterns associated with common and distinctive features that predominate within the area to an extent that justifies studying the area as a distinct category of legal situations.  We can cohere an area of law into a field by employing an organizational framework to highlight the distinctive patterns associated with the field.

Applying this methodology to environmental law, environmental law as a legal field is best understood conceptually as a category of situations that involve physical public resources subject to numerous, pervasively interrelated uses.  Conflicts among these uses are inevitable and create tradeoffs.  These use-conflict tradeoffs define the choices facing environmental lawmaking institutions.

This use-conflict framework for environmental law is superior to other explanations of environmental law because it focuses on features that are common and distinctive to environmental law and that explain the fundamental difficulties of lawmaking in the environmental context.  It does so, moreover, with a relatively value-neutral approach.  Unlike explanations of environmental law that are tethered to environmentalism, market capitalism, or other ideological commitments, the use-conflict framework does not assume any particular baseline by which to judge alternative options and does not favor any particular use of the environment as normatively superior.  By thus adopting a relatively value-neutral approach, the use-conflict framework facilitates critical analysis of a full range of alternatives.


Copyright © 2009 Cornell Law Review.

Todd S. Aagaard is Assistant Professor of Law at Villanova University School of Law.

This Legal Workshop Editorial is based on the following Law Review Article: Todd S. Aagaard, Environmental Law as a Legal Field: An Inquiry in Legal Taxonomy, 95 CORNELL L. REV. ___ (forthcoming 2010).

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