The Laws of Nature: Managing Ecosystems for A Sustainable Future

6. Ecosystem Management: A Policy-Oriented Jurisprudence Perspective

122 6Ecosystem Management A Policy-Oriented Jurisprudence Perspective SusanG.Clark,YaleUniversity& DavidN.Cherney,Universityof Colorado T heenvironmentisthe“fragileenvelopeof ourplanetinwhichwealllive,” and is presently “under unimaginable stress as industrial and sciencebased civilizations use the resources of the planet ever more intensively .”1 To address the unintended consequences of our intensive natural resource use (e.g., biodiversity loss, depletion of ocean fisheries, pollution, climatechange),humanshavedividedtheworldintocategoriestoaidourability to solve these problems. Ecosystems are one such construct that allow us to address natural resource problems at large scales. The ecosystem concept gives us a tractable way to understand our relationship with nature and allows us to alter that relationship, if we so choose.2 Currently, no comprehensive policy or law for ecosystem management exists; perhaps one is not needed. As such, there is no single formally codified goal for ecosystem management across management and political contexts. There are, however, many policies and laws that speak to environmental management directly and indirectly. Through these policies and laws, we can logically infer that the goal of ecosystem management is sustainability of the environment in relation to human uses of natural resources. While an admirable goal overall, it is clear that our policy and management responses are lagging wellbehindthelossanddegradationof ecosystemsthroughouttheworld.3 Nevertheless , ecosystem management is a widely popular construct and the dominant approach to nature and resource management. Ecosystem management susan g. clark & david n. cherney 123 often rests on the principles of positivism and “scientific management,” yet many people are calling for a more effective foundation to management (e.g., “adaptive governance”).4 This chapter looks at ecosystems and their management as an evolving concept and set of practices, examines the process of ecosystem management using cases from the Greater Yellowstone Ecosystem and elsewhere, and offers recommendations for more effective policy and law. i. methods and standpoint Our method and standpoint rests in a policy-oriented jurisprudence that focuses on social choices in real world contexts.5 It is a genuinely interdisciplinaryapproachtopublicandcivicorderanddecisionmaking .Thepolicy-oriented approachthatweusewasestablishedasameanstohelpadvancehumandignity (and sustainability) for all. In everyday understanding (and in many jurisprudence theories), the word ‘decision’ often refers to a judge applying rules to a specific dispute in a highly organized situation (i.e., the courtroom). Policyoriented jurisprudence goes well beyond convention, as described below. The locus classicus of this interdisciplinary jurisprudential school is H.D. LasswellandM.S.McDougal’s 1992two-volumetreatise,Jurisprudence for a Free Society: Studies in Law, Science, and Policy.6 This outlook was developed in Yale University’s Law School and often referred to by other names, including “The School of Law, Science, and Policy,” “Policy Sciences,” and the “New Haven Schoolof Jurisprudence.”Thisjurisprudenceisconcernedwithunderstanding both decision making and real-world choices. The activities of choice-making involvemanyelementsbeyondthelegislatureandcourtroom.7 Amorecomplete conception of decision includes a series of interrelated, dynamic functions.8 In short,itisnotpossibletodesignoramendexistinglaworcreatenewpolicyand law without attending to these extra-legal functions of decision making. AsdescribedbyReismanetal.,thisjurisprudence“adaptsanalyticmethods of the social sciences to the prescriptive purposes of law,” deploys “multiple methods,”andseeksto“developtoolstobringaboutchangesinpublicandcivic orderthatwillmakethemmorecloselyapproximatethegoalsof humandignity.”9 This philosophy stands in marked contrast to the jurisprudence of positivism. Positivism’s “common focus is on existing rules emanating solely from entities deemed equally ‘sovereign,’” and “does not adequately reflect the reality of how law is made, applied and changed.”10 Positivism has limits as noted above and detailed below. Postpositivism (with its deconstructionism) rejects absolutes, views all social and political discourses as saturated with power or dominance, 124 Ecosystem Management and celebrates “difference.”11 As Burbules and Rice noted, postmodern analysis does “not attempt to judge or prioritize the explanatory significance” of differences .12 Postpositivism makes it clear what we should not stand for.13 Neither positivism nor postmodern deconstructionism is sufficient to understand ecosystem management or decision making in the common interest. Wegobeyondpositivismandpostmodernism’sdeconstructism,toa‘reconstructive ’epistemology,theory,andmethod(thepolicy-orientedjurisprudence, aninterdisciplinarity).Ourjurisprudenceisapositionof integrationandreconnection .Our‘reconstructivepostmodernism(apostideologicalview)’addresses the possibility that not every idea, generalization, or proposed group universal is necessarily a form of power domination. Instead, it is a form of making meaning directed at the goal of human dignity for all. This view, we maintain, is essential for sustaining a healthy world. It is not ipso facto, absolutistic or ideological in the conventional sense. It is a developmental part of the “long conversation,” a multigenerational one about the “meaning of life” and the future of the human enterprise.14 ii. ecosystems—an evolving policy and legal concept Ecosystems and their management are the objects of attention for diverse communities––government...