Carmen Pavel, ‘A Legal Conventionalist Approach to Pollution’

ABSTRACT
There are no moral entitlements with respect to pollution prior to legal conventions that establish them, or so I will argue. While some moral entitlements precede legal conventions, pollution is part of a category of harms against interests that stands apart in this regard. More specifically, pollution is a problematic type of harm that creates liability only under certain conditions. Human interactions lead to harm and to the invasion of others’ space regularly, and therefore we need an account of undue harm as a basis of assigning legal protections (rights) and obligations (duties) to different agents, which creates standards for holding those agents responsible for harm. Absent such positive standards with respect to pollution at the domestic or international level, it does not make sense to hold agents responsible. This fact has two fundamental implications. First, contrary to what some defenders of environmental justice argue, we cannot hold people responsible for polluting without a system of legal rights in place that assigns entitlements, protections, and obligations, and second, contrary to what opponents of environmental regulation claim, the lack of moral entitlements to pollute creates room for quite extensive legal restrictions on people’s ability to pollute for the sake of the environment and human health. Indeed the scope of those restrictions is wide and open-ended.

Pavel, Carmen, A Legal Conventionalist Approach to Pollution (December 23, 2020). Law and Philosophy, 35:4 (2016).

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