A Legal Beagle’s Voyage

Nicholas A. Robinson, Evolved Norms: A Canon for the Anthropocene, in Rule of Law for Nature 46-71 (Christina Voigt ed. 2014).

Environmental law strives to improve the relation of Homo sapiens to the ecosystems that support human life and all other life on earth. Ever since Darwin we have known that just as each species affects its environment, the environment pushes back, exerting selective pressure in favor of adaptive variations. Evolution is the long-run product of ecology. At its best, environmental law puts this understanding to work in the service of people and nature. And yet, Professor Nicholas Robinson observes, the study of how human law shapes the planet’s evolutionary future barely acknowledges the role of biological evolution in shaping human law.

In Evolved Norms, Robinson sets out to correct this by connecting the contemporary emergence of consensus environmental law to the evolutionary emergence of widespread behavior patterns favored by natural selection. Drawing on sources in both the biological and social sciences, Robinson argues that humans have evolved instinctive, “hard-wired” normative preferences for cooperation, biophilia, and resilience. These norms are reflected in design principles that have shaped existing environmental laws – and that should be relied on to structure the global environmental law we will need to confront future ecosystem disruptions both imminent and distant.

An impressive range of positive law at every level supports Robinson’s thesis that these principles undergird the architecture of much existing environmental law. Evolved Norms finds them in New York State statutes, in constitutions of nations around the world, and in international agreements, as well as in high court decisions of many countries. They emerge in diverse settings, not all of which have been categorized, traditionally, as environmental law. The cooperation principle generates agreements for mutual aid in times of disaster and for collective management of common resources. The biophilia principle leads to legal protection of natural habitats and of biodiversity. The resilience principle promotes laws facilitating insurance against disaster.

A moment’s consideration that human beings are organisms, as subject to natural selection as any other species, suffices for the conclusion that these evolved norms must have some biological basis. Yet Robinson’s claim that cooperation, biophilia, and resilience have become built-in principles of environmentally sensible behavior seems based more in dogged optimism than in observed reality. After all, if these supposedly instinctive norms truly dominated human behavior (and the legal systems humans build to channel their behavior), the world would not be facing the “existential challenges” Robinson rehearses at the outset of Evolved Norms.

Robinson acknowledges this tension. He allows that “[t]he transcendence of ‘ecological instincts’ will occur incrementally and haphazardly” because the evolved norms favoring stewardship are often in tension with “maladapted ‘economic instincts.’”

The unpleasant question, though, is whether humans’ “economic instincts” really are “maladapted” in a Darwinian sense. The genetic traits that made Homo sapiens capable of such profound ecosystem modification, after all, are the same traits that conferred on our species such astounding evolutionary fitness. These phenomena cannot be separated, from the harnessing of fire to the use of tools to the domestication of other species and on down through human history to today’s extraction of previously inaccessible fossil fuels. Yes, there are examples of human settlements or societies that have failed because of long-term consequences of behaviors that seemed adaptive in the short term. But globally, our species has been – to invoke one of Robinson’s preferred evolved norms – resilient enough to succeed in spite of the apparent havoc it has wrought on other parts of the ecosystem. “Economic instincts,” then, seem to be a manifestation of Darwinian “fitness.”

On this question Robinson would have done better to distinguish more sharply between genetic evolution and cultural evolution. Robinson quotes Aldo Leopold’s observation that human instincts foster ecological competition while human ethics foster cooperation, yet Leopold understood that ethics directly restrain fitness-maximizing behavior: “An ethic, ecologically, is a limitation on freedom of action in the struggle for existence,” he wrote.1  Biological evolution has provided humans with the capacity to develop and apply such ethics: to conclude, for example, that it is possible to attain, as Robinson puts it, “sufficiency” in resource consumption. Cultural evolution, a product of genetics and environment, leads us, at least at some times and in some ways, to put that capacity into practice. This is remarkable in the biotic world. After all, the lynx preserves the hare population not because of ethical concern or self-interested foresight, but because when hares become scarce the lynx population crashes before the hares are all gone.

Sociobiology too has something to say about this, of course. Since the field’s founding, one of its central occupations has been to explain how natural selection could favor the spread of genes that produce altruism, cooperation, and other behaviors that seem contrary to maximizing individual fitness. Often the answer lies in genetic relationship: natural selection can favor behaviors that benefit siblings, offspring or other relatives even at some personal cost. As Robinson notes, evolved cooperation on this basis can extend too narrowly, if collective action is needed in response to problems of intertribal, international, or global scope.

In other situations, when the pursuit of individual self-interest in nature’s economy produces dysfunctional results (as it sometimes does in human economies), natural selection provides a needed if painful corrective. When humans introduced the myxomavirus to Australia in an effort to control the rabbits humans had previously introduced to the continent, the most virulent strain quickly was replaced by less virulent strains. The virus is spread by mosquitos, and mosquitos will not bite a dead rabbit. The rapid reproductive success of virulent viruses was too quickly fatal to their host organism and thus proved counterproductive to the virulent strain’s long-term survival. Mutation and natural selection promptly evolved viruses that killed less efficiently but spread more effectively. The rabbits in turn evolved resistance to the virus.2

The long-term success of myxoma virus in Australia depended on a balancing act – a type of stewardship of the virus’s host. Humanity’s long-term success depends on a balancing act that includes proper stewardship of our species’ host, Earth. Robinson’s insight that environmental law is based on, and should amplify, genetic traits that produce norms favoring such stewardship is an important contribution to environmental law scholarship. Robinson calls for “[s]tudies in law and sociobiology [to] begin in their own right.” It is a call environmental law scholars should heed.

Darwin understood that an organism’s inherited traits could be shaped by selection. After Watson and Crick elucidated the structure of DNA, evolutionary biology began a “grand synthesis” joining observational and theoretical population dynamics to genetics. Today, the power to decode whole genomes, coupled with increasing understanding of the environmental and epigenetic influences on gene expression, is rewriting large swaths of taxonomy and evolutionary theory once again.

It should be but a short, although difficult, leap to incorporate this biological learning into the study of law. Already neurobiology is undermining some premises of criminal law and the law of evidence, psychology is disrupting the claims of rational-choice legal theories, genomics is influencing the law of toxic torts. It makes perfect sense for evolutionary insight to inform the law of ecological stewardship. Nicholas Robinson’s Evolved Norms may not be to environmental law what The Origin of Species is to evolutionary biology. But Robinson deserves praise for having had the courage to step aboard the legal H.M.S. Beagle and begin the exploration.



  1. Aldo Leopold, A Sand County Almanac 202 (1949). []
  2. Peter J. Kerr, et al., Evolutionary History and Attenuation of Myxoma Virus on Two Continents, 8:10 PLOS Pathogens 1 (Oct. 2012). []
 
 
Discussion

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    Response to Steve Gold’s Review, “A Legal Beagle’s Voyage,” Jotwell

    Charles Darwin’s great insight was that evolution is all around us. His discoveries emerged in 37 months aboard H.M.S. Beagle, and when he devoted four decades at Down House in North Downs, Kent, England, to studying flowers, worms, pigeons and life in his backyard. We are still trying to fathom the meaning of how natural selection in species works. Just as it occurs everywhere, evolution is also a long-term process, although as Rosemary and Peter Grant have observed, it can happen in the span of decades (Peter R. Grant and B. Rosemary Grant, 40 Years of Evolution, Princeton University Press, 2014). How do homo sapiens cope with what Darwin described in Origin of Species, as “the struggle for existence.”

    Prof. Steve Gold’s artfully written and thoughtful review of my essay, “Evolved Norms,” is insightful. Until his review in Jotwell, whenever I have presented these views in environmental law gatherings, I have been met with polite silence or skepticism; not outright denial, but rather “how could it be so?” Few environmental law specialists have read widely in the cognitive sciences. These responses are illustrated by the commentary (pp. 75-7) following my essay in the journal Environmental Policy & Law {“Fundamental Principles of Law for the Anthropocene?” 44(1-2): 13-27 (IOS Press, 2014)}. Most dismiss “cooperation” as uncontroversial, criticize “biophilia” by confusing it with love of nature and not understanding it as Edward O. Wilson proposes (an instinctive affinity for nature), and argue that resilience is nothing more than an observable phenomenon. So, I am deeply appreciative that Steve Gold has entered so forthrightly into the thicket of sociobiology with his review.

    Little is understood about the process of cultural and social evolution in law, in contrast with what science knows of biological evolution. As scientists study the brain, we shall learn more. To what end? How to reflect upon what is discovered and how to re-examine our assumptions about how social organization functions, and how to consider how environmental law should function given its remedial purposes. Tentative first steps are needed. So, my first response to Steve Gold’s review is to echo what Darwin wrote to the Harvard botanist Asa Gray on June 18, 1957,”It is extremely kind of you to say that my letter has not bored you very much, & it is almost incredible to me, for I am quite conscious that my speculations run quite beyond the bounds of true science.” (www.darwinproject.ac.uk/entry2109) . My essay intended to speculate beyond what is accepted in law or sociobiology. But my inquiries strive to be empirical, not purely theoretical.

    Whether understanding evolved norms in law can help human society adapt to the coming changes of the Anthropocene is an open question, although if evolved norms can be demonstrated to work, then those guided by the norms will adapt more effectively than others. I chose what Steve Gold terms my “dogged optimism” not as a social preference (although I admit to being personally doggedly optimistic), but rather because the past evidence backs the prognosis. No one thought that environmental law could become a worldwide legal discipline back on “Earth Day,” 1969. Today the field exists, with its own learned societies (e.g,. IUCN Academy of Environmental Law, http://www.iucnael.org; Environmental Law Institute, http://www.eli.org). It is fact that the field of environmental law was created in one generation. I have elsewhere criticized “sustainable development” as an insufficient policy {“Beyond Sustainability: Environmental Management for the Anthropocene Epoch,” Journal of Public Affairs, 12(3): 181-94 (2012)}, but it is also a fact that this concept, first widely broached in 1987 in Our Common Future (Oxford Univ. Press), was accepted by all nations at the 1992 Rio “Earth Summit”, and is now a corner stone of governmental policy in all societies.

    Evolved norms, of course, do not win adherents just by being recognized. To this day, the evolved norms of “equity” or of “justice” are attained only with great difficulty. To better understand evolved norms, longitudinal studies of human societies over long periods of time and change are needed. This month, my study of the Forest Charter (carta de foresta, 1217) appears in the American Bar Association’s commemorative study, Magna Carta & The Rule of Law (Daniel B. Magraw, Andrea Martinez, Roy E. Brownell II, eds., 2014). The varied ecological habitats of most of England’s Royal Forests, begun by William the Conqueror, have been sustained over 800 years, despite wars, industrialization, democratization, economic depressions, and revolutions in technology. I suggest that this evidences Wilson’s biophilia principle at work.

    Beyond the evolved norms noted here, other candidates for empirical study are norms of foresight (a principle invoked by Theodore Roosevelt), sharing (Thomas Princen terms it the “sufficiency principle”), and well-bring (e.g. Bhutan’s happiness principle). Studies are needed to determine if and how such evolved norms are embraced by customary or statutory laws and guide human society in ways that advantage the species’ ability to survive and be reproductive.

    There is an edge to this inquiry. Humans need to learn fast, rising seas today encroach on coastal settlements. How shall human society adapt to the forecast disruptions of the Anthropocene? How can the principle that motivates stewardship of nature (Ed Wilson’s biophilia) more effectively structure laws that sustain species that humans have put on the brink of extinction? Does not the history of England’s Royal Forests, which is echoed in the existence of lawfully protected areas world-wide (nearly 15% of all terrestrial habitats), suggests that extinction need not be inevitable? I have outlined elsewhere how taking Resilience seriously can strengthen a society’s capacity to respond to disruption {“The Principle of Resilience,” IUCNAEL EJounral, 5:19-27 (2014) at http://www.iucnael.org/en/)}.

    Steve Gold is on firm ground in critiquing my shallow and inadequate review of genetic versus cultural evolution. I am unsure that human genetic traits are as important as are inter-generational cultural traditions in shaping social evolution. Prof. Gold worried that human economic aggrandizing impulses may be evolved traits, and so they may well be; but as Aldo Leopold posits, and Gold acknowledges, ethics can control greed and excess. Are such ethics the manifestation of evolved norms? It may matter less that some individuals pursue self-interest to the detriment of others; it may matter more that society reins in damaging excesses over time and resets the evolved norms as operationally central. But all this “speculation” on my part is the grist for further studies in law and sociobiology. In the Anthropocene, these inquires will move from the periphery of academic study to the core to social analysis and debate. I concur with Steve Gold’s estimate that there is lots more sniffing around here for legal beagles.

    Nick Robinson

    Prof. Nicholas A. Robinson

     

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