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Green wood in the bundle of sticks: Fitting environmental ethics and ecology into real property law
Boston College Environmental Affairs Law Review, Winter 1998 by Goldstein, Robert J
For some, beliefs in an omnipotent deity that exercises power over nature have limited the human responsibility for nature. These beliefs may have obscured the role of humans in stewardship and fostered complacency about the human environment. The advent of evolutionary theory, and importantly, the fitting of that theory within the context of widespread religious beliefs, allowing for its acceptance by religions and its juxtaposition with religion, has promoted the recognition of human intervention and human stewardship as the primary tools to maintain the environment.
Key to the movement toward an environmental ethic have been the writings (and deeds) of prescient thinkers, such as George Perkins Marsh (1801-1882),233 Ralph Waldo Emerson (1803-1882),234 John Burroughs (1837-1921),235 and John Muir (1838-1914),236 who adopted environmentally ethical views long before it fit within the popular metaphor following the widespread acceptance of Darwinism. The ecological wisdom that characterizes the writings of Henry David Thoreau (1817-1862) now stands as a beacon, although he and likeminded thinkers were largely ignored, if not scoffed at, by a world bent on industrial progress. Nonetheless, environmental ethics could not exist in the absence of a basic understanding of ecology, and ecology could not exist as a science without the acceptance of an evolutionary theory.237 In the case of Thoreau, it can be persuasively argued that he understood and accepted the evolutionary theories necessary to develop his understanding of ecology. This prescience, however, was extremely rare in the early nineteenth century, and therefore was absent in the early evolution of common law, as well as in the institution of constitutional law in the late eighteenth century in the newly formed United States of America.
One can only speculate what provisions would have been included in a U.S. Constitution drafted with principles of environmental ethics in mind. There are, however, clear indications of the role that regulations of real property played in the colonial period. During that period, property ownership concepts contained certain positive societal responsibilities, rather than an absolute right to do anything the owner wished to the property.238 "[P]eople could not use their property in a manner that was inconsistent with the community's ethical standards, or its economic needs.'"239The nature of that stewardship was molded to reach societal goals,240 and to afford the community protection from external harm. There were town herds of cattle, and regulations requiring the maintenance of fences about fields and meadows.241 Much of the modern study of environmental ethics is based on the writings of Aldo Leopold (1886-1948),242 particularly on his essay "The Land Ethic."243 His ethic has been drawn from his bold statement that "[a] thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise."244 While simplistic in its message, this single statement has been the subject of dozens if not hundreds of scholarly articles,245 and is itself perhaps the raison d'etre for the scholarly journal Environmental Ethics.246
