Given-ness and gift: property and the quest for environmental ethics.

• Author: Rose, Carol M.

1. Environment--A Given Or A Gift?.

   This article is about some important ways in which property relates to the environment. The most obvious and noticeable point is that in many ways, the relationship between property and the environment is one of opposites. Property is about things that are under our control; in fact, having control of something is a way to prove that you own it. Even our ordinary adages make this point: everyone knows the saying, "possession is nine-tenths of the law," meaning that if you control something, the law is very likely to say that you own it.

   On the other hand, the word "environment" in ordinary language often designates something that is not under anyone's control at all, something that is a given, or as we often say, "just a given." We talk, for example, about a business environment or a cultural environment: a set of amorphous surroundings that are just "out there," and that we cannot do very much about.

   When we talk about "the environment" without any modifiers, we are usually talking about aspects of our physical surroundings, such as air and water. But these physical surroundings, too, are almost by definition out of control,' and hence outside the comfortable range of property. The elements of the unmodified environment are wild things, and the wilderness habitat of wild things, and include the figuratively "wild" resources like underground fluids that our law calls ferae naturae, by analogy to untamed animals on the loose.(1)

   Historically, we have had quite mixed emotions about this quality of uncontrolled "given-ness". There are many stories and myths about wilderness, for example, and quite a number of these fall into one of two quite striking categories of horror stories. Both categories revolve about the unowned, property-less character of the wild, and about what happens when wild things are transformed into property.

   One type of horror story is exemplified by some comments that Jeremy Bentham made in a very forceful argument that prosperity depends on security of property.(2) For Bentham, the North American wilderness presented a decidedly bleak picture. "The interior of that immense region," he wrote, "offers only a frightful solitude, impenetrable forests or sterile plains, stagnant waters and impure vapours; such is the earth when left to itself."(3) He commented on the "fierce tribes" that wandered about in the forests and plains, animated chiefly by the "implacable rivalries" that led them to make constant war on each other. "The beasts of the forests are not so dangerous to man as he is to himself."(4) But Bentham thought that the lands of the settlers, with their secure property, offered a particularly instructive comparison. The settlers had reduced the dangerous and gloomy wildness to property. They enjoyed smiling fields, well-built and populous towns, bustling harbors, and in general presented a picture of "peace and abundance."(5)

   Bentham's horror story is thus one in which wilderness is a dark and frightening chaos that becomes sunny and happy only as it vanishes, ceding to property. But there is a counter-horror story too, comprised of many of the narratives we know about the transformation of the wilderness to property. These are stories that begin in innocence and splendor, a pure state that is then subjected to a storm of rampage and heedlessness. Perhaps the most dazzling epiphany of this sort of narrative involved a particularly eerie moment on the Great Plains in the fall of 1883.(6) It was the outset of a buffalo hunting season that, it was thought, would repeat the fabled slaughters of the decade before. But the buffalo hunters, fully outfitted and ready for another riotous orgy of killing, stepped off the train to find only the silence of an empty plain.(7)

   We all know both these types of stories at some level and in some version. These archetypical narratives exemplify two different views of wilderness, and indeed two different views of the uncontrolled environment in general. The first story, the one that Bentham told, is a vision of the given-ness of nature, and it tells us how deeply problematic that given-ness is. Bentham's story points to the malevolence of those things that are out of control--they are miasmic, shadowy, and filled with sudden violence. This story has a moral too, as many stories do:(8) it tells us that the "given" environment should be reduced to tame and placid property as rapidly as possible.

   The second archetypical horror story rests on a vision of the environment that is not just a given, but a gift. Stories of this type are tales of bitter malevolence too, but here the malevolence is the human interaction with the great gifts of nature. It is an interaction that despoils and ravages, that treats with contempt and callousness the things that should be revered, at least in part because they are somehow gifts.

2. Environment And The Economics Of The Commons

   Modern economists are in many ways successors to Bentham, generally arguing that the reduction of unowned objects to property is a good thing because property rights bring wealth and peace.(9) Private property regimes identify who has what, so that people can trade things instead of fighting over them. Just as importantly, private property regimes give owners the security that encourages them to invest time and effort in their goods instead of wasting them.(10)

   But the modern economists also acknowledge the narratives of despoliation in a way that Bentham did not. Bentham's story moved effortlessly from vicious wilderness to prosperous farms, skipping the intermediate stages that ravaged the once-wild landscape.(11) But a number of modem economists have noticed this intermediate stage and have related it to the particular problems of establishing property rights in the things we call "environmental."

   This in-between, transitional stage has to do with the way unowned things become owned. The normal way to establish property rights in completely unowned things, like seashells or abandoned umbrellas, is simply to take them, and to act as if they are subject to one's control.(12) A much-used example of the creation of property is the taking of wild animals: the animal is made into property by "reducing it to dominion," under what is called the Rule of Capture.(13)

   But with environmental resources, these normal ways of establishing property rights do not work very well. In fact, they lead to a great deal of destruction, because the goods that we consider environmental usually belong to a kind of natural commons.(14) Environmental resources are difficult to compartmentalize into individual chunks that can be taken without affecting other chunks. In using up air, for example, a factory can scarcely confine the smoke it gives off to a manageable little cube of space; instead, the factory's smoke may get into the air hundreds of miles away. Even when these resources look as if they can be taken in individual chunks, they may actually be part of some larger-scale renewable stocks, and the continued existence and value of these stocks entails leaving behind (or artificially replenishing) an unused reservoir from which the resource can regenerate. Thus, for example, individual fish may be taken from a fish stock, or individual animals may be taken from a wildlife stock. But in either case, enough must be left behind to repopulate the larger wild stock; otherwise the population will eventually decline or even crash, and future fishers and hunters may not get any at all.(15) Similarly, but in a more complicated fashion, the multitudinous plants of the Amazon rain forest appear to nourish one another in a complex energy and water exchange that is disrupted by massive burn offs or cuttings, whose impact cannot be easily isolated.(16)

   It is for these reasons that our usual property-defining act, the unregulated rule of capture, turns into a horror story for these great natural commons. These great commons need to be managed as wholes. But because they are so large, no one in particular can acquire them as wholes, and so sometimes no one manages them or reinvests in them at all. Instead, everyone just uses them or takes from them at will. Their great vast wildness seems infinitely exploitable, and puts no bounds on human acquisitiveness. And so sometimes human acquisitiveness itself goes wild: each human actor, fearing to be last in the race to capture the vast wild things, vies with all the others to take while the taking is free.

   Through a series of small decisions, the larger environmental resource is wasted, even though it might be in the collective best interest to preserve it. Air gets polluted, fisheries get fished out, forests get felled, bird populations get depleted, and aquifers get pumped dry. In general, people seem to vie to get the most for themselves, while investing the least. All too often, people leave behind a wasteland, where the resources are exhausted to a point that they cannot renew themselves.

   From the perspective of any individual, of course, it is entirely sensible to use as much as possible for one's self from common resources: if any one person invests in replenishment, or refrains from polluting, everyone else can take advantage of him or her. Nice guys finish last in this logic; what they replenish or leave in place is simply snatched up by someone else. And so it does not make a lot of sense to be nice in the first place. The well-known name for this process, in which everyone takes and no one gives, is the "tragedy of the commons."(17) The logic of the "tragedy" is to give everyone what the economists call a "high discount rate," in which the prospect of current income outweighs considerations of future well-being.(18) Resources that could be profitably renewed are instead exploited to the hilt now, and thus they are transformed into wasting assets. What is perhaps most tragic of all is that even well-intentioned people--people who...