Online journal of political philosophy
Last updated: 21/11/2003
Environmental Legal Theory and Natural Law in the Light of Natural Sciences
1. IntroductionIf mankind wants to be assured of order in the uncertainty of the world, it is primarily those institutions concerned with law which are called upon to provide the suitable points of orientation. By becoming an institution itself, and succeeding as heir to myth and religion in the central question of what should be considered as an orientation for existence, law was also compelled to take over the authority of its predecessors, which jurisprudence shares. The question of how Legal Theory should be able to increase its ability to provide its material - law, also in its practical correctness - is directly influenced by this. The formulation of this question is of particular importance with regard to the ecologic-economic problems to be solved in the highly developed industrial societies. For relationships between the ecological and economic environment are becoming increasingly complex. And: the large amounts of data which describe these relationships are becoming less and less clear to the legislator concerned with environmental law. The growing need for better preparation and for the scientific establishment of environmental laws at all levels, presents the legislator with numerous new functions to which he can scarcely do justice using the traditional methods of jurisprudence. Jurisprudence, therefore, is faced with the demanding task of developing instruments to guide the activities of mankind to a new integration with the natural environment, thus ensuring human survival (cf. Leidig 1988; Stober 1989).
These explanations may be sufficient to show the increasing importance of the function of planning and information in the real process of legislation. This process can, according to the theory of communications, be seen as a sequential processing of information (cf. Leidig 1984; Leidig 1995).
In this context for example, the question significant for natural law arises of the "subjectivity of nature (natural environment) to law" on the one hand, and of the "rights of future generations" (regarding an ecologically still-intact environment) on the other. These current and scientifically interesting problem areas in the discussion of environmental policy cannot be discussed with finality without a philosophical basis in natural law. These two questions in particular demonstrate the close connection which exists between the problems of environmental protection and natural law. Further on exists a close connection between natural law and natural sciences.
On the other hand, however, we must ask if a basic position in the philosophy of law which expects human reason to see meaningful connections, as natural law does, can provide efficient instruments to solve such central problems as environmental protection. If natural law will be helpful, the instruments must be able to reduce complexity and to understand the processes in the environment. Chaos-theory helps to understand such processes. Luhmann (1986), for example, takes the view that where nature is concerned, i. e. the preservation of the elements and processes of the natural environment, natural law shows considerable deficits in efficiency. If these deficits are to be eliminated, an ecologic-economic orientation within the framework of jurisprudence is necessary. Otherwise, jurisprudence will not be in a position to satisfactorily solve the current and future tasks set for it (cf. Leidig 1984; Leidig 1990). Is this possible without knowledge from Natural Sciences? The answer is: no. That´s the reason why a multidisciplinary approach is necessary - especially with regard to Natural Law and environmental problems.
2. Natural Law and Natural Sciences
2.1 Basic Aspects of the ProblemIt is evident that a modern and dynamic industrial civilisation, undergoing continual development, generates a constant requirement for political steering and problem-solving which, however, must have a sufficient theoretical basis if it is to be efficient. Consequently, science finds itself confronted with the problem of supplying adequate answers to the constantly emerging and already-known: But as yet unsolved - key problems of the industrial society, e. g. ecologic-economically connected problem areas. Thus the classical individual sciences - e. g. legal theory - are frequently out of their depth when faced with problems reaching beyond their own disciplines. As theories gleaned from individual sciences are often in no adequate position to record and explain complex problems in ways concurring with reality. The central theme of the question is, therefore, whether the mono-disciplinary research strategy which has been dominant to date should/must be enhanced by a multidisciplinary nature - also, and particularly, with regard to Natural Law and environmental problems. For it is the key task of science, to provide secure knowledge about the environment and the mechanisms of its functionality. This is being made more difficult at present, as the problem constellations to be solved by science - especially natural sciences - do not adapt themselves to each of the historically grown disciplinary boundaries. They make it necessary for both scientific disciplines and individual researchers to keep an open mind for questions which go beyond on single subject (Leidig 1999). Is this the next step? (cf. Weimar/Leidig 2002, pass.).
2.2 New Types of ProblemsFrom a system-theoretical viewpoint, "environment" (cf. Leidig 2003, pass.) is an open, cybernetic, dynamic, complex and less deterministic system consisting of two major sub-systems of the same structure: the ecological and the anthropogenic. The task of science now lies in describing, explaining, forecasting etc. the processes within and between these systems. Furthermore, science must provide instruments in order to avoid dysfunctionalities of a system-destructive nature. Here, with regard to the protection of natural resources, for example, numerous disciplines are required - particularly ecology (natural sciences), economics and jurisprudence/ legal theory (cf. Leidig 1999a; Leidig 1997; Bosselmann 1998).
In this context, however, the following series of questions is decisive for the prospective orientation of research strategies (cf. Leidig 1995a):
2.3 Multidisciplinary Research: NecessitySeen as a whole, there can hardly be a doubt that scientific evolution since the 18th century has brought about ever more tightly defined subdisciplines according to the law of increasing (cf. Leidig 1996):
3. Environmental Legal Theory and Chaos Theory
3.1 Chaos Theory: Basic Aspects
3.1.1 Basic ModelsIn order to master the future challenges of societal systems, a return is needed to holistic research methods and models which not only incorporate several variables, but also process knowledge form other disciplines integratively and develop them constructively. The chaos theory is such an approach: it goes back to a series of basic models stemming from other sciences. It is the product of an innovative process of synthesis. The central "basic components" can - with regard to their most important knowledge - be described as follows (cf. Leidig 1995; Leidig 1997; Leidig 1999; Leidig 1999a; Briggs/Peat 1993; Davies 1988; Cramer 1989):
a) System Theory
Von Bertalanffy (1968) is generally considered to be the first to formulate a comprehensive theoretical system of thought which describes the organisational principles of living systems. This approach realises that not only individual elements but also inter-dependencies between these are essential for a comprehensive scientific understanding of problem networks. A component which the chaos theory goes back to and combines with other knowledge.
A similar approach to that of von Bertalanffy was developed about 30 years earlier by the Russian scientist, Alexander Bogdano (cf. Gorelik 1994), which he called tectology: the "science of structures". His main aim was the determination and generalisation of organisational principles of all living and non-living structures. Both models contain central basic knowledge which were integrated into the chaos theory.
This line of thought, developed by Wiener (1948), a field of science going beyond the classical boundaries, examines a phenomenon existing in natural and anthropogenic systems: Namely the steering, i.e. the "keeping under control" of conditions. Central to the development of the chaos theory was line of thought pertaining to circular systems with a feedback-effect as defined in cybernetics. This general principle of regulated cycles can, despite its high degree of abstraction, be used for the explanation of processes in the natural or artificial environment (e.g. cycle of nature, cycle of economics).
c) Self-Organisation Theory
The principle of self-organisation is another main component of the chaos theory. It means that in a system without external influences, structures form, the characteristic of which is that both its organisation and its order increase.
Self-organisation in stages of societal development takes place in particular in a period of change. Koselleck (1972) understands this to mean historical periods in which a modification of central norms and values of a society take place. This means, that the system is in a phase of radical change marked by a high potential for chaos in which concepts such as planning and controllability fail to a large degree. At this "threshold", according to Mittelstaedt (1997), self-organising mechanisms occur which form new structures from the period of radical change or from chaos. For an efficient natural law it is necessary to understand this kind of processes.
d) Ecological Research
Building on Darwinian ideas Haeckel (1866) realised that the structure of reciprocal relationships of species can become knowledge of a new scientific discipline. He coined the name "ecology" for it. This approach researches the environmental factors influencing organisms as well as the living requirements of certain species and the demands these make on the environment.
In view of the problems to be discussed here, the "deep ecology" (cf. Heinrichs 1997; Capra 1996) approach is of interest. It sees neither mankind nor anything else as being separated from the natural environment. It does not see in the world a collection of objects isolated from each other. But a network of phenomena which are basically connected to each other and are mutually dependent on each other: a point of view which was adopted by the chaos theory.
e) Theory of "Dissipative Structures"
The theory shows that the behaviour of a dissipative structure far from the equilibrium no longer follows any universal law. Near the equilibrium repeating phenomena and universal laws can be found. However, as soon as we move away from the equilibrium, we move from the universal to the singular, to abundance and variety (cf. Capra 1996). The existence of forks (bifurcations) means that uncertainty is another characteristic of this approach. At each bifurcation, a central mechanism in the chaos theory, there is a non-reducible element of chance. Which way the system will take depends on its own history and cannot be predicted. If you want to "change" something by law, you must be able to understand the "behaviour" of a system. Without this knowledge, natural law will create "wrong" solutions.
f) Autopoiesis Approach
The theory of autopoiesis, the organisational pattern of living systems, was developed by Maturana/Varela (1980). The notion of autopoiesis, the property of living systems, is to constantly renew itself and to regulate this process in such a way that the integrity of the structure is preserved. Autopoiesis is described as a network pattern in which each component has the function of participating in the transformation or production of other components.
3.1.2 Components / MechanismsUnlike many classical disciplines the chaos theory does not reduce objects of research to ideal cases which do not exist in reality. It accepts disruptive factors as normal: As a natural process and sees the occurrence - for example the interwovenness of the anthropogenic and the natural environment - in its overall complexity. Chaotic behaviour can be found in almost all areas. Identifying chaos is in many cases not a part of scientific research or is only in its beginnings. In order to create a basis for further investigations, the central components and mechanisms must briefly be systematised (cf. Leidig 1999a).
The term "chaos" originates from the Greek and literally translated means "structureless primordial mass". All creation myths begin with chaos, the Big Bang, the primordial sea from which the world and life originated. However, chaos may not be mistaken for anarchy, lawlessness, disorder or lack of rules.
Chaos research - in the sense of mathematical theory - is seen as the study of disorder occurring in non-linear systems and the search for new terms of classification. The chaos theory, then, deals with the conditions under which chaos occurs, the exact characteristics and the effects of chaotic movements as well as the values of its limits. These examinations take place both in concrete systems - e.g. the ecosystem - and using mathematical models.
The dominant characteristics of chaotic processes can be shown as follows (Leidig 1999a):
However, non-linear systems - and these should be dominant in reality - have until now for the most part been neglected within the framework of scientific research efforts - even with regard to the shaping of instruments for environmental protection. In a non-linear system, a complex ecosystem, the whole is far more than the sum of its parts. Linear models fail because they are unable to record what is significant - the totality of interdependencies between the elements and processes of sensitive dynamic structures (cf. Leidig 1999a).
Bifurcations are the milestones in system evolution: history crystallises in them. In the development of a system a bifurcation is that decisive moment at which slight changes bring about a branching from the previous "path" and the system moves in a new direction. Over the course of time whole cascades of bifurcation points either cause a system to split up into chaos or - through a sequence of feedback loops which combine the latest changes with the surroundings - to stabilise in new behaviour. In the area of those points in which the "memory" of past bifurcations has crystallised, systems usually remain very sensitive (cf. Leidig 1995; Leidig 1999a).
Feedback describes the connection between cause, effect, and response in a system. We speak of positive feedback when the effect and the response strengthen each other. Negative feedback is when the effect and the response weaken each other. This is the basic principle of all circuits. Systems only remain in a stable condition through negative feedback. This mechanism must be taken into consideration in conceiving instruments for environmental protection. Until now, however, this has been ignored in many cases.
3.1.3 ConclusionsChaos research is also giving innovative impetus. Legal Theory which alternatives must thereby be strategically considered and held in readiness. In the end, only one of the alternative actions will be carried out. Due to the uncertainty of non-linear systems assumed in chaotic processes, it is not possible to make clear forecasts (cf. Leidig 1999; Leidig 1999a; Leidig 1997).
Non-linear models no longer model all the individual causal chains but knots in which feedback loops interconnect. The goal is not a forecast but a means of disrupting the model by varying the parameters. Thereby learning something about the critical points of the system and about its capability for resistance. Analogies of the working mechanisms, from the perspective of Legal Theory and environmental law show that relationships do exist. This means that the chaos-theoretical approach in jurisprudence certainly comes into its own. It was, of course, possible to give plausible reasons for development processes before now. In this way, for example, the necessity for development measures was derived from the ageing process of extremely interwoven systems without the ability to regenerate themselves.
Here, however, the chaos theory opens up new perspectives for Legal Theory. For example, crises emerge in points of bifurcation but in their proximity, the systems mostly remain very sensitive.
The investigation of chaos and its working mechanisms strengthens the initial theory of a holistic approach, e.g. within ecologically oriented jurisprudence or natural law. In this context, the chaos theory provides new patterns of thought and research whose potential should not remain unused. Natural law needs the knowledge of this approach, to find solutions for ecolocically oriented problems in a changing world. Without this informations, the efficiency of solutions is not very high.
3.2 Fields of ApplicationFrom the above discourse on the chaos theory, the following conclusions present themselves for mastering future demands with regard to the early recognition and steering of ecologic-economically interwoven fields of crisis, (cf. Leidig 1999a; Leidig 1997)
As, particularly in complex dynamic systems, even slight non-linearity can trigger chaotic behaviour, testing should in future be performed on the basis of dynamic models - e.g. using simulations - before making decisions influencing natural or societal systems, to see whether the parameters which have the most influence on the behaviour of the system are close to areas of chaotic values.
Moreover, critical system parameters in the case of decisions close to areas of chaotic values must be constantly checked in order to prevent them, through appropriate measures, from sliding into the regime of the chaotic.
An absolute prerequisite for the introduction of such ecological strategies for avoiding crises is that the non-linearity generating the chaotic behaviour and the constellation of parameters decisive for the behaviour of the system are recognised at an early stage and chaotic developments can be identified as such. Further progress in this extremely interesting field for the avoidance of crises and the mastering of the future can be expected when the presence of non-linearity can be successfully detected, perhaps by the systematic evaluation of available data and the further development in the case of chaotic behaviour can be forecast better.
That means: Natural Law needs informations from other sciences to produce efficient solutions. One important approach is the Chaos Theory (cf. Leidig 1999).
It can be seen to an increasing degree that a modern and dynamic, continually developing industrial society has a constant requirement for scientific and political control and solutions to problems. Legal theory and natural law must find new solutions - may be with the help of natural sciences. Consequently, the scientific system sees itself confronted with the problems of developing adequate concepts for solving the newly emerging and already known - but as yet mainly unsolved - central problems of industrial sociological systems, for example the maintaining of the natural resource potentials. This goal, however, can only be realised with a multidisciplinary research strategy. This strategy is not limited to a passive registration and passive synthesising of single pieces of knowledge from other sciences, but is seen as an attempt to integrate different disciplinary approaches to solving problem areas, while aspiring to achieve a deeper understanding and penetration of the fields of research to be analysed. It is particularly for this reason that such a strategy, aspiring to integrate, knowledge from specific disciplines, is becoming increasingly significant. Compared to the disciplinary research strategy, the multidisciplinary approach to research has the decisive advantage that it is better adapted to the essence and the complexity of reality. This is helpful for the natural law, too. However, this does not mean that the multidisciplinary approach to research will become an alternative to monodisciplinary (pertaining to one field) research. It is rather a sensible, because necessary, extension thereof. There exists a close factual relationship between the two research methods: monodisciplinary research is a prerequisite for multi/interdisciplinary research which, for its part, can give new impetus to the disciplinary form. For it is not the aim of the multi/interdisciplinary research strategy to do away with specialisation in the development of the sciences, but to overcome and avoid closed off and isolated "research in an ivory tower". The task of the multidisciplinary research strategy - like the monodisciplinary strategy - is to develop new theoretical concepts which permit us to come closer to solving the problems of our sociological system.
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* Dr. Guido Leidig, Wiesbaden/Straßburg/Freudenberg
Member of the Board of the "European Faculty of Land Use and Development", Strasbourg
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