Towards A Contract Theory of Ecology


The only distinction between “the economy” and the “the environment” is the fear and bigotry humans bear against non-human freedom in nature.  It is high time we humans grew up about this.  Industrialists must recognize that the economy includes the natural environment replete with non-human free-willed beings endowed with the same natural rights as human free-willed beings.  Environmentalists must recognize that the natural environment includes everything any human ever has done, does or will do because humans are part of nature, and that there is nothing more inherently “natural’ about a wildflower or a rainforest than a nuclear power plant or a Twinkie wrapper.

Ecology is economics and economics is ecology.  Of the two fields, ecology provides superior scope but economics provides superior analysis for their common enterprise of accounting for and assisting in the planning of the mutually sustaining activities of free-willed beings.  By drawing a false distinction between human technology and Earth’s other intelligently developed systems,  environmentalists do their cause a tremendous disservice.  They give industrialists precisely the excuse they seek to continue polluting and destroying with abandon, because they endorse the false premise that humans stand apart from nature when they pollute and destroy it.

To endorse wholly the industrialist’s delusion of separation from nature, then turn around and wag a finger and say, “But what you are doing will come back to haunt you in the end, and the rest of us humans with you!” is weak reparation for the harm already done in aiding and abetting the polluter. The fact is, human technology and engineering are no different from ant, bee or algae technology and engineering.  It is all intelligent, planful, designful. It is all potentially constructive and destructive.  It is all done in gross ignorance of the overall consequences to other overlapping systems of interdependence in nature.

Moral Separatism and Market Failure

In his 1992 article “A Kantian Approach to Trade and the Environment” (49 Wash. & Lee L. Rev. 1373 (1992), Robert F. Housman argued that improving human welfare through trade and protecting the natural environment are both Kantian moral imperatives we must adhere to, so we must take actions that satisfy both imperatives at once.  He offered a vision of “competitive sustainability” as a general method of acting upon both imperatives at once.  Thus far I agree with and applaud him.

Unfortunately Housman, while gesturing in the right direction, falls back on the canard that only government action through subsidies, penalties and unilateral and multilateral trade restrictions can create the market conditions under which sustainable practices can be competitive with unsustainable practices.

Housman also runs the wrong way with the Kantian football, much as Fichte did.  There is little in Kant’s own writings that directly endorses technocratic paternalism as a political virtue but there seems to be a tendency for later thinkers to regard Kant’s scribblings as justification for leaping from his humble recognition of man’s limited mental faculties to the self-contained moral justification for imposing one’s own egotistical Utopian imperatives on everything in sight.

For Fichte the Utopia came in the form of his quite serious proposal to forcibly round up all German children into state-run indoctrination camps to be raised in complete isolation from the adult world, so as to purely inculcate in them the communistic moral righteousnous of the Fichtean twoness of being.

For Housman the Utopia is less kookie-sounding but ultimately even more grandiose, as he envisions unnamed Kantian agents in government, industry and elsewhere putting their feet down to stamp out the vast majority of human actions that do not cleave to the human-government-defined mutual good of both humans and non-humans.

The raging debate between industrialists and environmentalists on how this or that practically omniscient set of technocratic humans should rule the world all swirl around the fixed point of reliance on Keynesian, Marxist or socialist economics for their prescriptive assumptions.  All these strains of economic thinking share in Fichte’s Kant-induced pipe dream that there are some humans who are smarter than all humans, and some species (humans and maybe, no, yes, okay maybe dolphins) that are smarter than all species, and that the world would be so much better off if the dumbs would just submit to the guidance and protection of the smarts.

I would say the reality is more like almost every human and non-human being on earth is pretty smart, and there are a few idiots who think they are head and shoulders smarter who need to be kept in check for the greater good.

Moral separatism, by any other name, leads us nowhere but to investment stupidity, massive market failure and productivity collapse.  While it is tempting to point at fiat currency, centralized banking, fractional reserve lending and quantitative easing as the cause of our market problems, the truth is they are merely symptoms.  As we systematically annihilate the productive capacity and market infrastructure of the Earth to feed our net sink human-isolationist economies, it is no wonder we have to resort to massive counterfeiting and ponzi scheming to cover up the truth about the unsustainability of our horrendously malinvested economic activities.

An Economics of Humility

Austrian economists run the right way with the Kantian football.  They take the perspective of the vast majority of pretty smart critters who know they are not more than just pretty smart and know nobody else is either.  They seek to provide a basic understanding of human trade behavior but they end up providing an understanding of all free-willed behavior in nature. Austrian economists point out that economic actors are never capable of comprehending the broad or long-term consequences of their actions, and that nonetheless the community of economic actors in the world today has survived for a long, long time.

People have evolved a way of arriving at sustainable cooperation without any need for global or even very non-local perspective or central planning. Austrian economists indirectly point out something fundamental about the Earth, which is that the very survival of its intricate systems of interdependent natural entities proves that evolution has already decided what kind of critters are most helpful to sustainable living, and gotten rid of the rest, and the ones that remain tend to be short-sighted and driven by an almost endless variety of forms of immediate gratification.  Nature is a carefully self-weeded garden of interlocking mediocrity, and humans are but one example of a typical garden variety.

Passingly clever, short-sighted, Hobbesian critters acting in our own immediate self-interest are the salt of the Earth.  They, and among them we, are what keep us humans and them non-humans alive from one moment to the next.  Trees do not produce oxygen out of a Fichtean enlightened insight into the fundamental twoness of consciousness that requires selfless action to achieve universal love of self and being.

Trees produce oxygen for the same reason humans fart, because in some utterly base way it feels good and right for them to do so and because evolution or God has seen to it that what feels right to us is actually good for us a great deal of the time. These base critters work things out with each other and manage to develop complex systems of economic interdependence and global supply chains that monstrously overwhelm in complexity those of mere human industry.

Ecologists have revealed a great many intricacies in the interdependencies of free agents in nature. Economists have developed powerful methods of describing how free-willed beings cooperate and compete to sustain themselves.  Contract law provides the sinew that holds together the applied insights of economic theorists into the ways people trade labor to help themselves to each others’ help.  Contract law applies just as well to the economic actors of Austrian Economics, and since those actors are free-willed beings of limited cognition like every other unpredictable agent in nature, contract law as applied to Austrian Economics actually provides a foundation for what I will call “A Contract Theory of Ecology”.

Physician Heal Thyself

There is a tendency among environmentalists to take a medical approach to nature.  Nature, according to this pervasive trope, is a giant organism consisting of myriad interlocking systems upon each of which the health of the whole vitally depends.  This trope has developed, I believe, defensively in response to potential or actual claims by industrialists that nature has no fragile balance or integrity that it needs to sustain, and that pollution is just part of nature. While the appeal to the metaphor of Earth as an organism is understandable, it is also deplorable when the ecologists and environmentalists proceed to appoint themselves the personal physicians of this organism Earth, and prescribe treatments for maladies they blame upon the industrialists on the one hand, and more recently on the masses of short-sighted, self-absorbed and reckless consumer-customers of the products of human industry.

What is bad about this is not just the utterly unjustified presumption of expertise about the entire Earth’s inner workings, but also the inherent assumption in the metaphor that a great deal of human activity is an invasion of the Earth’s body by some foreign element. Humans and their factories and bombs are not foreign elements to the Earth.  They are made of earthly matter formed into earthly patterns down to the tiniest particle and are every bit as much a functional part of Earth’s ecosystems as anything else.  If they happen to lead to the extinction of the human species, or even the extinction of every living organism on land and in the seas, life will emerge again because the geologic conditions for life have not fundamentally changed since the Earth first cooled down a few billion years ago.

If we think Monsanto Corporation is capable of trying anything novel with genetics that God or evolution has not thought of or tried before, we flatter our mediocre species.  Monsanto’s Frankenfoods are not deplorable because they are liable to take nature by surprise and trump the process of evolution.  They are deplorable because they are certain to resemble genetic designs that have already been tried and failed in the history of natural selection, and will likely lead to the destruction of individual human and non-human bodies as life evolves around their stupidity once again.

But just suppose humans do manage to destroy every living thing on Earth.  Isn’t the Earth itself still alive if it continues to absorb, process and emit energy from the Sun, and breathe in tides and winds from the gravitational pull of its dance with its beloved child the Moon?  And it would be, like the Moon, finally free of parasites.

Let’s face it.  The Earth’s survival as a living being does not need any of the lesser living beings that live on or near its skin.  For environmentalists to claim they are “saving the Earth” is ninny-talk.  They are saving what they like of the Earth and trying to destroy the things of the Earth they don’t like.  I happen to agree with them largely about what is likeable and what is not, but I would like to see honesty in our cause.  We dislike things in nature that destroy the ancient habitats of other things in nature, or that cause pain and suffering to animals and morbidity and death to animals and plants (except for invasive species, whose hands-on annihilation we relish with unbridled zeal – oh how I love to strangle English Ivy and feel its helpless limp sinews and decrepit green juices dripping off the mighty garden glove of justice that armors my righteous hand).  That is our bias.

Industrialist and Environmentalist Humanism

The underlying driving concern of both industrialists and environmentalists is one and the same – to improve humans’ ability to get what they want in relation to the rest of nature.  The awe one feels when looking out over the Grand Canyon or up at Yosemite Falls is absolutely the same as the awe one feels looking out over the suburban sprawl of the Silicon Valley from the hills, or looking up at the Taj Mahal.  Any qualitative difference one feels is just a matter of politically motivated aversion training, one way or another.

A Contract Theory of Ecology cuts to the chase.  How can we humans maximize our fulfillment in the economy of Earth? Well, there are the things we tend to like, our pets and foods and “beautiful” scenery, and there are the things we often don’t like to be around but have come to understand we need in the world – most bugs, shit, stench, dangerous carnivores, mold, bacteria, viruses and slime.  We know many of the animals we love are enamored with stuff we abhor.  Dogs love shit and stench.  Dogs and cats eat bugs for a tasty snack, but so do most humans of course.

Even humans among ourselves can never agree on what is fragrance and what is stench, or what is food and what is not.  I grew up with homemade bottles of different shades of black stuff in the fridge my mother regarded as delicacies, and she used to love telling the story of the time our Italian-American neighbors brought over a huge pot of authentically prepared spaghetti. My mother graciously accepted with genuine heartfelt thanks, but once the door was closed she sniffed the sauce and retched at it, then dumped it all directly into the trash can.

One thing that nature clearly currently favors is diversity of desires and aversions, and it does not take a rocket scientist or a behavioral economist to recognize that diversity of desires and aversions maximizes the gains to be had from cooperative and cordial trade relationships and minimizes zero-sum-game competition.  So the more humans trade with non-humans and less with each other, the more humanity as a whole stands to gain from trade in general.

In the end the greatest argument for multiculturalism is that it maximizes both the mutual benefit and the overall harmony of trade, and the same can be said of biodiversity.

Proper Ground For Standing

Forty years ago Christopher D. Stone published an article entitled “Should Trees Have Standing? – Toward Legal Rights for Natural Objects” in which he argued for recognizing large-scale natural objects like rivers and oceans as legal persons on whose behalf lawsuits could be brought against anyone who does them harm.  Like corporations, trusts and humans who have been declared incompetent, Stone argued, natural objects can and should have court-appointed legal guardians to represent them in court.  He argued that natural objects can easily be understood to “want” certain things, such as not to be destroyed and to obtain an injunction against would-be destroyers, just as clearly as a trust or corporation can be said to “want” to appeal a ruling to a higher court.  They can even be held liable for harm, he argued, such as when a river floods, though he questioned how one would precisely attribute liability in such a case.

Exhibiting the civil rights movement’s exuberance over its erstwhile victories through U.S. Supreme Court and federal police power interventions in the sixties and early seventies, Stone argued that civil rights for natural objects were already being constructed by federal laws mandating environmental impact studies and alternative planning for government agency land use projects, and he advocated going further to recognize standing for “natural objects” so that lawsuits on their behalf could be brought, not only for their own good but as a way of centering collective legal action by all creatures human and non-human who are negatively impacted by a polluters’ actions.

I agree with what Stone wrote back then that there is no reason why natural objects should not be regarded as legal persons.  I do not, however, believe it will suffice to treat non-human free agents on a par with vegetatively disabled humans or corporations, because non-human free agents actively exercise their liberty in ways comatose humans and corporate legal-fiction entities do not.

Animal Rights and the Pathetic Fallacy

Julie Hilden brilliantly shows how Rawls’ contract theory, applied consistently, cannot avoid granting equal rights to animals under the law:

Unfortunately the case she is able to build in favor of non-human rights in this manner is limited by the Pathetic Fallacy inherent in Rawls’ contract theory itself.  Rawls would likely accuse Hilden of committing the Pathetic Fallacy but the irony is that by basing entitlement to rights to a human empathy standard, it is Rawls who commits the Pathetic Fallacy.

The pre-embodied citizens behind the veil of ignorance deciding their post-embodied fate in Rawls’ thought experiment determine the rights that should be afforded to all equally by imagining themselves in various different states of embodiment.  But this experiment necessarily restricts itself to the empathic imagination of whoever is conducting the thought experiment.  Projecting the human experience of free will as bound up with all sorts of emotional mumbo-jumbo and post-agrarian psychoanalytic baggage onto all other creatures who engage in free-willed action, and refusing to acknowledge they have free will simply because they do not share our emotional and psychological navel-gazing and indigestion in the exercise of free will, certainly amounts to a massive instance of Ruskin’s Pathetic Fallacy.

Observing empirical evidence of animals, rivers, trees and meterological entities behaving “as if they have a will of their own” in quantitatively measurable ways, however, is not at all an instance of the Pathetic Fallacy. If it were, it would involve attribution of human traits to non-humans. But free will is demonstrably not a particularly human trait; in fact It is not even really a trait at all. It is a computational status of patterned motion, namely, its incomputability.

Empathy is a wonderful thing, but the ability of most humans to empathize with someone is not a good test for whether that someone should be granted legal personhood and equal rights under the law.  In the end, Hilden herself does not even consider the prospect of extending rights beyond the animal kingdom, nor does she consider the absurdity even under an implicit empathy standard of granting those rights to plankton but not to trees.  Surely most humans, if given the test, would find it easier to imagine being a tree than being a zooplankton, yet by restricting her discussion to animal rights, she excludes trees and includes plankton.

Nonetheless Hilden’s device of appealing to the disembodied nature of the liberal subject of natural rights to demonstrate the absurdity of limiting those rights to humans is precisely the same angle I take in approaching the theory of contract.  However, whereas Hilden’s argument goes no further than to point out the absurdity of species-isolationist theorizing on natural rights, the Contract Theory of Ecology, drawing on a Generalized Praxeology, is able to provide a positive and empirically verifiable operational definition of a free agent deserving full legal personhood. Hilden’s argument is restricted by Rawls’ pathetic fallacy to the subjective limits of extending rights from humans only to those with whom humans are able to empathize.  Sadly, as Hilden points out, neither Martha Nussbauam nor Rawls himself seems to have much empathy for animals when it comes to natural rights.

The weakness in Hilden’s argument is rooted in a deeper problem with animal rights in general.  Extending human rights to animals relies on the pathetic fallacy that would have natural rights be extended on the basis of psychological affinity rather than on an objective empirical test of free agency as would be provided by the incomputability theory based practical unpredictability standard of Generalized Praxeology.  In the end, the general argument for animal rights to the exclusion of non-animal rights boils down to the idea that since we believe animals experience consciousness like we do, they should have rights like we have.  Instead of acknowledging that natural rights attach to objectively demonstrable freedom of action, the animal rights approach psychologizes rights by extending them only to those who can be shown to have demonstrated the capacity to suffer physical and emotional pain and anguish as a result of restrictions on their freedom.

Indeed, Hilden is either unable to extend her own empathy, or unable to muster the courage to reveal her true convictions, when she asserts that non-human animals are incapable of assent to contract:

And more generally, of course, bartering is allowed in human societies. The complication is that unlike humans, non-human animals cannot assent to such arrangements. However, proxies or guardians might do so on their behalf …

She follows Christopher Stone in recommending guardianship for non-humans in all matters of contract because she believes only humans are competent to participate autonomously on their own behalf, even though non-human animals and non-animals keep humans alive every day by doing just that in the free market of world ecology.

The Contractual Origin of Property

The fact is, all “land use” is actually the hiring of free agents residing in the land to do specific labor, and all land use should be understood and contractually defined as such.

Land use rights should be limited to specifically described uses of land within specified finite time and space parameters.  The specified uses, moreoever, should be required to be couched only in terms of the labor of free agents in nature.  Any claim of legal permission to use the land in the way thus specified must then take the form of a legal contract in which one hires the specified free agents in nature (river, salmon in the river, etc.) to perform the labor they are hired for.  In U.S. law contracts are generally only valid if three elements are present:

  1. Offer and Acceptance
  2. Mutual Assent
  3. Sufficient Consideration

Stone applauded government administrative policy actions that established the beginnings of legal personhood for natural objects, but felt this did not go far enough, and advocated court recognition of natural objects as legal persons with recognition of standing to bring suit and recognition as both injured parties and beneficiaries.  Like Housman and Fichte, however, Stone ended up prescribing a top-down coercive imposition of a moral imperative because he continued to ascribe no competent free will to the “natural objects” he wanted recognized as legal persons.  His ultimate conclusion was that these “natural objects” would be represented by self-appointed or government-appointed human or corporate legal guardians who would presume to act on their behalf. I don’t think such an approach is either morally defensible or practically effective.

Non-human free agents in nature do not need guardians.  They have been looking out for themselves for far longer than humans have been around.  They may need legal representation in human legal systems when humans finally evolve enough to become communicative with them, but their lawyers should not be regarded as their guardians.  Free agents in nature should be understood by courts not just to have standing but also to be presumptively competent parties to all legal transactions.  Goodness knows even flu and common cold viruses are far more competent in every sense of the word than any humans have ever been.

Activist attorneys can seek out non-human clients to serve as plaintiffs in test cases just as they seek out human clients for that purpose.  They can enter into contracts with non-human clients to represent them just as they do with human clients.  All that is required is to establish a rational means of ascertaining behavior indicating either an offer or an acceptance of the contract, ascertaining the assent of a non-human free agent to a contract and documenting sufficient consideration changing hands, paws, cilli, waves or whatever.

Mutualism Is Contract

Everywhere there is law, there is routine recognition of implied contract through recognition of evidence of tacit assent, consent, offer, acceptance and exchange.  Everywhere in nature we find the very same evidence.  In ecology and biology the term used for such phenomena is “mutualism”, which is a type of “symbiosis” in which both parties benefit from their “biological barter”:

In this type of symbiosis, both organisms of different species rely on one another for nutrients, protection and other life functions, hence, they are usually found living in close proximity.

It can be thought of as a form of “biological barter” since the species trade resources (for example carbohydrates or inorganic compounds), or services such as gamete or offspring dispersal, or protection from predators.

There are two types of mutualism: obligate mutualism and facultative mutualism.


The resemblance to trade is not merely metaphorical.  It is literal.  What biologists call “mutualism” simply is trade, and not just incidental exchanges but standing contractual intertwinement of entire societies that is comparable in scale, complexity and intentionality to international trade relations between human societies.

Each time one organism obtains nutrients from another, and fends off a predator of the other in exchange, a single contractual trade transaction occurs, one transaction among countless others of the same kind that constitute the overall mutualism biologists observe and describe.  In each instance all three elements of contract are present:

  1. Each organism recognizes the opportunity to engage in this exchange, signals to the other willingness to cooperate and acts wilfully upon that opportunity.  Thus there is offer and acceptance.
  2. Each organism deliberately chooses to engage in the transaction in anticipation of the specific benefit to be gained from it, because it physically and mentally could have done otherwise. The anticipation may be theoretically ascribed based on observation of consistent deliberate behavior resulting in the benefit, repeated attempts to obtain the benefit in this way ceasing with the first success, etc.  But the anticipation is also likely to be observable from physiological markers exhibited at the onset of the action in almost all cases.  Thus there is mutual assent.
  3. Each party receives substantive benefit, without either forcing it on the other.  We can observe parties ceasing to participate when they find they are receiving no benefit, so we can observe markers of sufficiency of benefit in their behavior.  Thus there is sufficient consideration.

Clearly there is a valid contract implicit in every mutualist transaction in nature.  If the organisms involved both happen to be human our legal system would surely recognize the validity of the implicit contract here.  If our legal system fails to recognize the validity of the contract simply because one or both parties is not human, then we simply have no meaningful law of contract, no rule of law at all.  For each and every justification case by case for denying the validity of such a contract other than blatant de jure discrimination against non-humans would ultimately condemn the validity of all contracts to a death of a thousand tiny cuts and nibbles.

Reckless Underaccounting And Invalidation of Contract

Yes, I am saying that right now our law of contract and rule of law are completely moribund and in shambles.  This is most obvious in the arena of international law(lessness).  Through state conflict humans continually trample over the property rights arising from longstanding contracts among human and non-human free agents alike.  The continual pillaging of property by human collectives grossly distorts each collective’s internal economy.

The distortion of value is immense from the unaccountable sporadic influx of pillaged unbalanced value into “developed” and “developing” human collective economies in the form of land rights allocation and subsequent destruction of indigenous ecological property to capture and enslave specific free agents on or in the land.

The cost of obtaining this oppression-procured value is generally under-accounted because the externalities of oppressive behavior can only be properly assessed if one first recognizes the enormous value inherent in the free-willed contractual activity of those who are oppressed, prior to their oppression.  Humans doing land development worldwide are idiotic savages chest-pounding their way into intricately engineered ecological metropolises and smashing everyone and everything there to release the excess heat to warm their bare asses.

By continuing this practice of invalidating a class of contracts whose only commonality is the irrelevant reproductive incompatibility of its parties to humans, our legal system faces an intractable dilemma between outright codification of arbitrary and capricious discrimination on the basis of aforesaid irrelevant attribute of the contracting parties on the one hand and on the other a self-defeating project of pretextually rationalized discrimination skitting from one ill-fitting proxy shell to the next like a retarded hermit crab, that can only end in the reckless invalidation of all contracts whatsoever.

The only solution for our legal system is to back away immediately from this path towards certain destruction and walk resolutely in the other direction.

The Natural Right of Contract

Now that we have established the necessity of recognizing the contractual validity of mutualist transactions involving non-human parties, we can proceed to describe how these non-human parties may come to have standing to bring tort actions against a destroyer of habitat.

What happens when Party A interferes with Party B’s ability to fulfill its contractual obligations to Party C?  Does Party B not have valid grounds for a tort against Party A?  Doesn’t Party C not have the same?  So if Corporation A pollutes River B and harms Beaver C, both River B and Beaver C have cause of action against Corporation A, not because B and C have been directly physically harmed by the pollution (though they may well have), but because they have been prevented by A’s action from fulfilling their contract obligations to each other, and hence suffer the loss of the mutual benefit expected from that contract.

Notice the difference here in how a contractual theory of ecology plays out as an ecological theory of contract among legally competent non-human free agents, as opposed to how Stone’s model plays out with human guardians bringing suit on behalf of legally incompetent “natural objects.”  In the former, the rights of the river and the beaver are grounded in their property rights as they have arisen from the exercise of their contract rights, so their rights and their standing both emerge organically from the law itself, whose taproot is its definition of contract and the creation of value through mutual obligation.  In the latter, the river and the beaver have no standing and no rights until some government body establishes their “legal personhood” by recognizing their ownership of property, and being incompetent they are still not recognized as parties to valid mutualist contracts, so cannot be acknowledged to hold property interest in those contracts.

The capacity for property ownership is the basis for all three aspects of legal personhood Stone describes: the right to petition the government (standing), the right to claim injury and the right to receive compensation for injury.  Once you establish your right to own property, you own your own body, and once you own something, be it your body or something else, you automatically get these three basic elements of legal personhood.  But property rights are created by contracts, so contract rights are the true basis of legal personhood.

Without contract rights, and competent status to exercise them under the law, you have no practical control over your property or your fate, even if they are recognized as being your own.  Someone else will control them and, hence, control you.  While Stone’s proposal was courageous, inspiring and brilliant both theoretically and tactically at the time he published it, in the end guardianship amounts to nothing more than highly regulated enslavement, which is to say, government enslavement delegated under specific conditions to an individual named as “guardian.”

Contract is the instinctive behavior of free-willed beings in community.  Anything that behaves in a mathematically incomputable manner thereby exercises de facto free will because nobody else can be sure what they are going to do.  The right to engage in contractual exchange is the right to live freely in community, which is to say, the right to live at all.  It is the sine qua non of legal personhood.

The Contractual Origin of Self-Ownership

The tactic used in U.S. Civil Rights law to correct historical discrimination has been to extend gradually the scope of legal personhood enjoyed by people of color and women by establishing their property rights, but not necessarily beginning with the absolute right of ownership of their own bodies.  For women this began with the reform of women’s property rights in marriage in New York State in 1848, and gradually extended through suffrage rights, the first no-fault divorce law in California in 1969, Roe v Wade requiring states to defer to individual women’s sovereignty over their own bodies in 1973, the Equal Credit Opportunity Act of 1974, actual implementation of Title VII of the Civil Rights At of 1964 beginning in the 1970’s, the Pregnancy Discrimination Act of 1978, the elimination of marital exceptions to state rape laws beginning in the mid-seventies, the VMI decision in 1996 that declared public sex discrimination illegal wherever it restricts equal opportunity for females, the 2003 Hibbs decision upholding the Family Medical Leave Act and the final passage of no-fault divorce laws in all fifty states and the District of Columbia as of October 2010.

Slaves in the antebellum South had limited rights to property while they were still wholly owned by their imprisoners.  How else could some of them save up money to buy their own freedom?  They also were grudgingly granted some very limited and arbitrarily unapplied right to humane treatment, mainly as a check on the excessive cruelty by some slaveowners that, it was feared, could harm the profitability and sustainability of the slavery system as a whole by inciting more slave resistance, rebellion, negative publicity, international opprobrium among trade partners and political fodder for abolitionists.  Nonetheless the legal system afforded people it did not recognize as owning their own bodies as nonetheless having the right to own other things.

The place to start bootstrapping the rights of non-human free agents in our legal system is to recognize the property rights arising from the implied contracts they are committed to which have significant benefit to humans, particularly those upon which humans vitally depend for their survival or other immediate gratification.  Self-ownership is not the source of individual liberty, but a by-product of its development from the right of contract.  Individuals who have use of one another create markets, and their market contracts create property value in the form of mutual obligations resulting in mutual benefits.

A Contract Theory of Ecology would thus lay the groundwork for a new legal strategy to induce the gradual recognition of the property rights of non-human free agents wherever they can be shown to be of greatest import to humans.  Gradually this would develop into a body of case law that provides for a full status of legal personhood for non-human free agents.  Only then will trees, rivers and humans themselves for the first time have a proper ground on which to plant and intertwine their contractual roots to give operable heft and leverage to their legal standing.

Saving Humanity From Ourselves

The primary aim of this endeavor, however, is not to champion the rights of the non-human against discrimination, and in that way it differs from the Civil Rights movement in a fundamental way.  I believe humans ought to discriminate in favor of humans against non-humans wherever it actually benefits humans.  The primary aim, rather, of pressing for full personhood under the law for non-humans is to force humans to stop discriminating against non-humans in ways that actually harm humans, and to establish a sound, undistorted  and complete foundation for contract law and property law that eliminates what amounts to a massive cooking of the books of the entire human economy to make it falsely appear we are profiting from our damn-the-non-humans practices.

The truth is, our prejudice against non-humans has blinded us to the massive economic deprivation we are causing ourselves by our species-isolationist-protectionist worldview.  Humans have enormous wealth to gain through honest, respectful, free, fair and open trade relations with non-humans.  By participating in the overwhelmingly non-human free market economy of the world, we could eliminate all the poverty, malnutrition, deprivation, strife, want and even pretty much all the work we have to do in our lives.

By isolating ourselves from the general economy of the world, we not only deprive ourselves of all it has to offer, but we profoundly distort the basic equilibrium of our own isolated human markets by routinely recording in our ledgers as raw material asset gains what are in fact massive losses from our destruction of ecological market infrastructure and productive capacity.  By thus counting massive losses as marginal gains and devaluing all the not-yet-destroyed ecological infrastructure down to the raw resource value of the wasteland and debris we plan to salvage from it after we annihilate it, we massively encourage, guarantee in fact, malinvestment in utterly wealth-destroying ventures and enterprises.

The primary aim of a contract theory of ecology is to shock my fellow humans into realizing that the insulated coterie of primates we have permitted to steer our economic ship are drunk and asleep at the wheel, and that our ship is sinking fast.  To right it and sail straight we need to orient ourselves properly to the waters around us and recognize the relevance and value of the world’s ecosystems to our own wants and needs, and the opportunities that lie waiting for us to prosper as responsible participants in the general world economy outside our species-isolationst-protectionist bubble.

To develop such a legal strategy further, we need what I will call “An Ecological Theory of Contract” and I will explore the launching of such a theory in a subsequent blog entry.

The Contract Theory of Ecology I have set forth here, however, allows us to establish a political standpoint that can form the basis of a new political party.

Pro-Human Ecoscopic Libertarianism or Ecohumanism

I am coining a new term “Pro-Human Ecoscopic Libertarianism,” and its less self-defining but more pithy shorthand, “Ecohumanism” to describe a new type of libertarianism that, I believe, resolves all remaining tensions between environmentalism and libertarianism. I choose the term “Ecoscopic” instead of “Ecocentric” to make it clear that I do not wish to presume to have no bias in favor of humans, while I do want to emphasize that we need to see all that we do in terms of its broadest ecological context. I choose the term “Pro-Human” to go further to embrace and avow an explicit bias in favor of humans. The key to the resolution between libertarianism and environmentalism is to recognize:

1) Free market principles apply to all natural systems, not just human systems of trade.
2) Every natural system consists entirely of free agents whose free actions are unpredictable.
3) Every natural system tends toward overall equilibrium in harmonious contractual relations among all its free agents.
4) Coercion is free action by one free agent that constrains free action by another free agent, and is always present in any natural system, including those in relative equilibrium.
5) Any local equilibrium of harmonious contractual relations among some but not all the free agents in a natural system involves some unresolvably imbalanced coercion of the excluded free agents and thus cannot establish itself as the equilibrium of the overall system because the excluded free agents will coalesce around a different local equilibrium.
6) Any local equilibrium cannot coerce free agents in a different local equilibrium and can only sustain itself by coming into harmonious contractual relation with all other local equilibria in the system.
7) Overall equilibrium tends to clot, to evolve into two or more local equilibria that rely upon each other in some kind of free exchange to maintain themselves.
8) The clotting of local equilibria tends to clot further into many sub-local equilibria within it, but these tend to “bleed” outside their “containing” local equilibrium systems to engage in some degree of free exchange with free agents in other local or sub-local equilibria. That is to say, local equlibria that clot apart from each other tend to have sub-local equilibria that connect at a lower level to tie the ostensibly separate local equilibria together in subtle and specific ways.

Applying the above principles to our current situation on this planet:

1) Earth is a local equilibrium system in the Earth-Moon system, which in turn is a local equilibrium system in the Solar System, etc. Below I shall refer to the Earth local equilibrum system simply as Earth.
2) The human population of Earth is a local equilibrium system that relies on free exchange with all non-human local equilibria of Earth to sustain itself.
3) States are sub-local systems within the human system of Earth.
4) State corporations are sub-local systems within States.
5) Multi-National corporations are sub-local systems of Earth on the same organizational level as States.
6) Regional and municipal governments are sub-local systems of states.
7) Neighborhoods are mostly sub-local systems within regional or municipal governments, though some span more than one such government’s territory.
8) Households are sub-local systems of neighborhoods.
9) The overall market equilibrium of the Earth involves many levels of overlapping local equilibria that bleed into each other to a limited extent at every level down to individual trade relations across all boundaries, including the boundary between humans and non-humans.

Humans at every level of system equilibrium depend more than marginally on complex systems of interpendence with non-human individuals, so much so that it would make no sense to regard anything more than languages as being relatively self-contained human-only systems. Certainly all human production of the means of human subsistence is intricately interwoven into matrices of long-evolved symbiotic contractual relations between humans and non-humans, and between non-humans and other non-humans in ways that tightly tie the survival of human life to contractual relations among non-humans. The only thing that humans do in a self-contained manner without non-humans, in other words, is talk.

This is why deliberative democracy fails as a means of assuring human survival and well-being. It emphasizes the dominance of the very aspect of human social activity that does not connect humans closely to the contractual relations and activities that provide humans with the means for living.

Pennington rightly describes how Hayek pinpointed this problem with deliberative democracy and rightly championed free market exchange systems as providing a superior form of communication to serve the broader need for humans to engage in the harmonization of free action required to achive sustainable local equilibrium.

Hayek and Pennington both, however, fail to recognize that the means for material production, as one aspect of the means for living, consists of more than mere inanimate objects or robotically enslaved organisms. It consists of a nexus of contractual relations evolved over thousands and in many cases perhaps millions or even billions of years.

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