Law Schools, Capitalism, and the Environment: Why environmental law needs to be taught to every law student

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SUMMARY  

An openly honest and important paper written by then U of S law student Brendan Thompson about the importance of teaching environmental law to law students.

Law Schools, Capitalism, and the Environment: Why environmental law needs to be taught to every law student

Law school’s capitalist focus leaves its graduates without the skills and knowledge to address the climate crisis. Environmental concerns must form a core component of legal education to address this. I’ll explain to you why that is, but I’m going to need to establish a couple of things first. So, in this blog post, I’ll explain how a legal education is one that disregards the context in which it exists and one that upholds capitalism and capitalist values above all others. A change in their approach and outlook is necessary for law schools to truly take part in combatting climate change.

To explain all this, first I’m going to establish what it is law schools teach and how they teach it. I will argue that they teach lawyers how to produce, protect, and maintain capital and they do this through a number of core courses with a pedagogical method that strips the law of most of its social context. This has produced a legal profession that is largely made up of capitalist agents and little else. However, let me clarify that I am not making the case that capitalism and environmental stewardship are incompatible. That argument has already been made.1 What I am going to describe is the need for law schools to change their attitudes and approaches when it comes to the environment. The purpose of this blog post is to point out the current systemic blind spots that law school pedagogy has when it comes to the relationship between law and climate change.

Legal education as we know it today owes its pedagogical methods and core classes to Christopher Columbus Langdell, the Dean of Harvard Law School in the late 19th century.2 It is Langdell who came up with the “case method” of legal study that is widely used today.3 This method is one where students extract laws from judges’ decisions in order to apply those laws to other situations. Reading a case only to find the law within it leads law students to ignore social and societal context.4 This was one of the main criticisms of Langdell’s method when he first introduced it.5However, the method persisted to the point that today, the only courses in which law schools generally explore social context in any detail are the specialized “Law and-”6 classes that are almost always optional courses rather than ones required to become a lawyer. 

The lack of context in legal education leads to lawyers whose function is to merely manage an abstract system of rules. As legal scholar Katharina Pistor points out, lawyers are the ones who create wealth and capital by coding it into the law. On behalf of their wealthy clients, they are able to build and protect capital with little regard for what the societal implications may be.7 Law schools have created an entire profession whose goal it is to strip away social context from the rules that govern society, largely in order to hold onto wealth. 

Law school’s mandatory courses focus on the creation and protection of capital as opposed to anything else. When he was designing his law school, Christopher Langdell chose five core classes that every lawyer would need: Property, Contracts, Torts, Criminal Law, and Procedure. Over the years, this formula has not changed much, although Constitutional Law has been added and Procedure is, at some schools, dropped. I have substituted Constitutional Law for Procedure in my analysis for that reason. All of the classes are either aimed at or have a history of maintaining capitalist systems. 

 

 

Arguably, the emergence of modern property law is itself the origin of the capitalist system. The destruction and privatization of the commons in England has been cited as the ideal conditions for the rise of capitalism and the Industrial Revolution.8 The commons, which were based on a diffusion of responsibility and power, were difficult for outsiders to organize and they promoted community instead of exclusion and individualization.9 Private property, which was, and still is, backed by state sovereignty,10 worked to dismantle the commons and do away with its community, grassroots dynamic.11  Thus the course was set for modern capitalism.

Over the centuries, property law has been responsible for mass transfers of wealth to a smaller, more concentrated group of people. By the 1600s, property had become a structure to entrench an individualist world-view.12  Property law maintained that any redistribution of property would never become common, but remain in private hands.13 It was used as a legal justification for colonization14 and it “[i]s still perhaps the most powerful institution of exclusion, individualization, and competitive accumulation.”15 In this way, property law is one of the foundations for Western capitalism.

If property law provided the original foundation for capitalism, the law of contract is its close cousin. In his book Capitalism and Freedom, Milton Friedman declares that consensual exchange between two parties to each of their benefit is the way the market organizes society in a voluntary way. This, he explains, is modern capitalism.16  That sentiment is echoed by William LaPiana who writes that laissez-faire’s legal equivalent is “freedom of contract.”17 No other doctrine represents the spirit of the liberal project better than that of the law of contract.

Tort law is again slanted towards those who control capital over those who produce it. Originally, tort law grew out of the industrial revolution.18 The idea that industry is what drives a nation’s growth and wealth and, therefore, the growth and wealth of society, is baked into torts.19 Tort law presents the problem of whether or not the legal system will help or hinder enterprise.20 Further, torts are based on an individualist, liberal ideology. Trespass is based on harm to an individual, whether that be assault, battery, false imprisonment, or others.21 Principles of capitalism are embedded in tort law as well. For example, one defense to a tort claim is “defense of property.”22 Although tort law itself is not a foundation of capitalism, it very much supports the capitalist principles of liberty and private property.

Criminal law is the enforcement of capitalist ideas, standards, and principles under the threat of violence of the state. At the beginning of the Industrial Revolution, as the commons were privatized and people were forced into cities, criminal law developed to force them into factories and other workplaces that they may not have wanted to go to otherwise. It accomplished this through criminalizing “vagabonds, the poor, and the unemployed.”23Later, it would come to include union busting.24 Activities that either actively or passively flaunted the power of property owners were condemned by the state and enforced with violence by the police.25 Like tort law, criminal law is not directly foundational to capitalism. However, it is responsible for enforcing the capitalist system, coming down on anyone who does not abide by it.

"The challenge for law schools is to train lawyers who are aware of the context in which they work, and who know how their actions will impact the environment... [W]hat law schools need to do is to be aware of what they are teaching and shift their philosophy to one that places inherent value not on capital, but on the environment."

Constitutions are the highest laws of the land that protect liberal values and remain largely inaccessible to collectives. As a form of law that is often superior to legislation, the constitution is decided largely by judges.26 In the past, the poor had no way to access the rule of law, so the constitution left them out, leaving them to become employees of the manufacturing industry and “the machinery of property concentration.”27Even Milton Friedman admitted that constitutional law is necessary to capitalism as a referee.28 Besides that, constitutional law makes economic power difficult to detect and correct, so redistributing it more equitably becomes near impossible.29 Constitutional law is as much a vehicle for liberal capitalism as the law of contracts.

While there are constitutions around the world that enshrine environmental protections, they are still not able to completely solve the problem that the Western capitalist mindset presents. In Argentina, for example, the Supreme Court has upheld their constitutional environmental laws, but that has not changed the capitalist mindset because the interests of industry are strong and influential.30 The situation is similar in both Brazil and Ecuador.31This seems to be more a difficulty in changing a culture’s mindset than its laws,32 a problem that is touched on later in this post.

It is evident then that what law schools are doing is creating agents of capitalism and if that is doubtful, one need only look to the results for confirmation. Katharina Pistor’s book The Code of Capital33 describes the process by which lawyers use the law to create wealth and value in property on behalf of their already wealthy clients.34 Because lawyers are the ones who argue for changes to the law, the system becomes a self-perpetuating one. Lawyers beget capital which begets lawyers which beget capital.35 All of this is done using the legal rules and positivist system that is taught at law school. 

But what relation does this have to the environment? Actually, there’s the rub: it has no relationship to the environment. It is a system that cares little for the context in which it operates, including the environment from which it draws resources. This is by design, going back not just to Langdell, but to Sir Francis Bacon, whose ideas shaped the capitalist mindset’s view of the environment as something to be exploited and nothing else.36Moreover, John Locke’s philosophy continued in this vein, connecting the right to property with the right to exploit natural resources.37 With the decoupling of the law from its context and capital from environmental responsibility, Western society set itself up hundreds of years ago for the current environmental crises we now face. 

The cultural power of capitalism also enforces an economic system that benefits from having little responsibility when it comes to the environment. It is far cheaper, for example, to move factories to countries with fewer pollution laws. Such countries provide cheaper labour and allow for higher emissions.38 This exacerbates both inequality, by making poverty beneficial for those who control capital, and global warming, by keeping pollution inexpensive.39 Another example is the need for oil companies to demonstrate to their shareholders that they have enough oil on hand to continue to produce and be profitable.40 This requires them to continuously find new projects, which impose a greater and greater toll on the environment as conventional sources are used up.41 The constant and compounding nature of these endeavours is to emit more and more carbon into the atmosphere. It is not a surprise, therefore, that environmental regulations and protections are not in the best interests of the capitalist projects built on the system of liberalism and de-contextualization described above.

 

 

The challenge for law schools is to train lawyers who are aware of the context in which they work, and who know how their actions will impact the environment. It is not the goal of this blog to determine whether or not the capitalist way of thinking ought to be a part of that training. Up to now, it has been detrimental to the environment, but there are certainly schools of thought out there that posit that it does not have to be.42 Instead, what law schools need to do is to be aware of what they are teaching and shift their philosophy to one that places inherent value not on capital, but on the environment.43  

To demonstrate why this might be important, let me point to none other than John Locke. During his lifetime, Europe was going through what has in hindsight been recognized as a Little Ice Age.44 The entire continent was struggling to improve crop yields at a time when the climate was making it difficult. This led to increasing inequality, which was most evident in France.45 Locke became concerned with the well-being of his fellow human beings. He was driven to create an abundance for everyone through his ideas and philosophy.46 It was due to a desire to make the land efficient and prosperous that Locke became a proponent of exploiting it. He changed his, and eventually Western society’s, way of thinking in order to adapt to a time of climate change.47We find ourselves in a similar historic moment, albeit an era of human-driven climate change. It is incumbent on us, then, to change our way of thinking as well. 

It is necessary to reframe the law’s relationship to the environment. Only through emphasizing the value of the environment and its critical importance to every branch of the law will legal education do this. After all, the same law may have one environmental impact in one place and a different impact in another.48 Furthermore, that law may not even be what is seen as an “environmental” law.49 This demonstrates the importance of considering the implications of legal actions taken under any branch of the law. In this way, all law becomes environmental Law. 

That being the case, a legal education without environmental law is inadequate. Future lawyers will continue to be unequipped to deal with climate change and the challenges it presents if they shirk the context in which they work. Perhaps this means that a comprehensive environmental law class must be mandatory for all students. Perhaps it means that professors must teach the core classes, Property, Contracts, Torts, Criminal Law, and Constitution, with an eye on how they impact the environment. Perhaps a complete overhaul of what a legal education actually is must be in order. Whatever the path, it is clear that law schools have a great deal of work to do when it comes to doing their part to secure humanity’s future on the planet. 

Allow me to go over what I have discussed here. Law schools teach five main classes that are mainly concerned with the creation, protection, and maintenance of capital: Contracts, Property, Torts, Criminal Law, and Constitutional Law. They do this using a method that strips the law of all its social context whatsoever. The combined classes and method results in lawyers who work on behalf of their clients to secure capital with little to no regard for the ecological and societal consequences of their actions. This has contributed to the degradation of the environment, including through human-caused climate change. It is a self-perpetuating system and one that can only be interrupted by recognizing the inherent value of the environment itself. It is the responsibility of law schools to change legal education to center on the value of the environment, as the risks of doing otherwise are far too great to ignore.

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  1. Naomi Klein, This Changes Everything: Capitalism vs. the Climate (United States: Simon & Schuster, 2014) [“Klein”].
  2. William P. LaPiana, Logic and Experience: The Origin of Modern American Legal Education (New York: Oxford University Press, 1994) [“LaPiana”] at 10.
  3. Ibid at 7.
  4. Joshua Krook, “A History of Law Schools: A Battle Between Law as a Science and Law as a Liberal Art” (21 February 2018), online: New Intrigue <https://newintrigue.com/2018/02/21/a-history-of-law-schools-a-battle-between-law-as-a-science-and-law-as-a-liberal-art/> [“Krook”]. See also: LaPiana, supra note 2 at 26.
  5. LaPiana, supra, note 2 at 137.
  6. Nicole Graham, Lawscape (New York: New York Routledge, 2011) at 16.
  7. Katharina Pistor, The Code of Capital: How the Law Creates Wealth and Inequality (Berlin: De Gruyter, 2021), audiobook: Hoopla (Tantor Media, Inc.) [“Pistor”] at 00:09:00.
  8. Pistor, supra note 7 at 1:21:00 and Fritjof Capra and Ugo Mattei, The Ecology of Law: Toward a Legal System in Tune with Nature and Community (Oakland: Berrett-Koehler Publishers, Inc., 2015).
  9. Ibid.
  10. See my discussion below on Constitutional Law.
  11. Capra and Mattei, supra note 8.
  12. Ibid.
  13. Ibid.
  14. Ibid.
  15. Ibid.
  16. Milton Friedman, Capitalism and Freedom (Chicago: University of Chicago Press, 1962), audiobook: Hoopla (Blackstone Publishing) [“Milton Friedman”] at 45:45.
  17. LaPiana, supra note 2 at 152.
  18. Lawrence M. Friedman, A History of American Law (Oxford Scholarship Online, 2019), online: Oxford Scholarship Online [“Lawrence M. Friedman”].
  19. Ibid. (Also, no pun intended.)
  20. Ibid.
  21. Halsbury’s Laws of Canada (online), Torts, “Categories of Trespass” at HTO-19 (QL).
  22. Cresswell v Sirl, [1948] 1 K.B. 241.
  23. Capra and Mattei, supra note 8.
  24. Lawrence M. Friedman, supra note 18 at 556/7.
  25. Michael E. Tigar, Law and the Rise of Capitalism (New York: Monthly Review Press, 1977) at 327.
  26. Capra and Mattei, supra note 8.
  27. Ibid.
  28. Milton Friedman, supra note 16 at 6:30-8:30.
  29. Jedediah Britton-Purdy et al, “Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis” (2020) 129:6 The Yale Law Journal 1784 [“Britton-Purdy”] at 1794.
  30. Jason MacLean, “You Say You Want an Environmental Rights Revolution: Try Changing Canadians’ Minds Instead (of the Charter)” (2017-2018) 49:183 Ottawa Law Review.
  31. Ibid.
  32. Ibid.
  33. Pistor, supra note 7. 
  34. Ibid at 00:34:45.
  35. Tigar, surpa note 25 at 329.
  36. Capra and Mattei, supra note 8 at Intro and Ch. 3.
  37. Ibid at Ch. 3.
  38. Klein, supra note 1 at 81.
  39. Ibid.
  40. Ibid at 145.
  41. Ibid at 145/6.
  42. L. Hunter Lovins, “Climate Capitalism: The Business Case for Climate Protection” (2010) 27:3 Pace Environmental Law Review 735.
  43. Sean Coyle and Karen Morrow, The Philosophical Foundations of Environmental Law (Portland: Hart Publishing, 2004) [“Coyle and Morrow”] at 215.
  44. Brian Fagan, The Little Ice Age: How Climate Made History 1300-1850 (Basic Books: New York, 2000) at 152/3.
  45. Ibid at 155.
  46. Coyle and Morrow, supra note 43 at 52/3.
  47. I am not making the claim that John Locke was a climate writer. I doubt that he was aware that he was writing in response to problems based in climate change. That said, the problems that surrounded him were partially due to an unstable climate, whether he knew it or not. My point is that he came up with massive philosophical changes to address them.
  48. John Copeland Nagle, Law’s Environment, (New Haven: Yale University Press, 2010) at 5.
  49. Ibid at 8.