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.
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Acknowledgments
For useful feedback I thank Mark Budolfson, Peter Stone, David Schmidtz, Jacob Levy, David Boonin, Hillel Steiner, Guido Pincione, Ralf Bader, Steve Wall, Josef Sima, the audiences at the European Political Science Association Meeting in Edinburgh, Scotland (June 2014) and Western Political Association Meeting in Hollywood, California, (March 2013), and two anonymous referees. This article was written with the support of a grant from the John Templeton Foundation. The opinions expressed in it are those of the author and do not necessarily reflect the views of the John Templeton Foundation.
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Pavel, C. A Legal Conventionalist Approach to Pollution. Law and Philos 35, 337–363 (2016). https://doi.org/10.1007/s10982-016-9256-2
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DOI: https://doi.org/10.1007/s10982-016-9256-2