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Ways Not to Think About Social Theory: Rethinking Environment, Law and Society
Published online by Cambridge University Press: 18 July 2014
Abstract
It is possible to broadly characterize social theory in terms of routine moves which are shaped by a priori contexts, and deep structure moves which seek to delineate those shaping contexts and, sometimes, to call for new ones. Thus, for example, in the environmental literature we see the routine moves of so-called “shallow ecologists,” who tend to privilege natural systems only to the extent that they serve human ends, and the deep structure moves of “deep ecologists,” who value non-human life forms and systems for their intrinsic value. The author discusses those moves and demonstrates two deep structure theories in the progression of the spiritual view of nature from animism to its current form of instrumental rationality, together with the implications of liberal political ideology for environmentalism. He then advocates an alternative approach to social theory, grounded in the notion that institutional innovation, properly understood and “managed” along a trajectory free of the dead hand of deep structure theory, may hold the promise of transformative possibilities that are neither trivial nor unrealizably utopian. The implications for environmental reform are considered, together with an example taken from the practices of industrial production.
Résumé
Il est possible de brosser un tableau général de la théorie socio-juridique en termes de tactiques routinières tracées dans des contextes définis a priori, et de stratégie structurelle profonde tendant à délimiter ces a priori et même, parfois, à en rechercher de nouveaux. Ainsi, par exemple, dans la doctrine écologiste, il existe des tactiques suivies par les écologistes pragmatiques qui privilégient les systèmes naturels dans la mesure où ils desservent les fins humaines, et les stratégies structurelles profondes préconisés par des écologistes extrémistes qui voient en toute forme de vie et de système autres qu'humains une valeur mystique intrinsèque. L'auteur débat de ces deux tendances et décrit deux stratégies structurelles profondes qui tendent vers une vision spirituelle de la nature, comme l'animisme et sa forme contemporaine de rationalité instrumentaliste, tout en évaluant l'impact de l'idéologie politique libérale sur le mouvement écologiste. Il défend une nouvelle approche de la théorie socio-juridique fondée sur l'idée que les réformes institutionnelles, lorsqu'elles sont envisagées et appliqués sans les contraintes des théories qui privilégient les structure structurelles profondes, offrent des possibilités qui n'ont rien de ridicule ni d'utopique. Prenant l'exemple des pratiques exercées dans le milieu de la production industrielle, l'auteur étudie les implications de telles réformes.
- Type
- Research Article
- Information
- Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 12 , Issue 1 , Spring/printemps 1997 , pp. 193 - 237
- Copyright
- Copyright © Canadian Law and Society Association 1997
References
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12. Ibid. at 199.
13. False Necessity, supra note 1.
14. Ibid.
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19. Supra note 1.
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21. See e.g. Tribe, supra note 2 at 1337: “It was the tradition of immanence which was exemplified by the pantheistic belief that all objects and places in the natural world possessed guardian spirits demanding propitiation as security against unspeakable harm.”
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27. See e.g. White, supra note 2 at 1204: “Man named all the animals, thus establishing his dominance over them. God planned all of this explicitly for man's benefit and rule: no item in the physical creation had purpose save to serve man's purpose.” [Emphasis added].
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29. Tribe, supra note 2 at 1334, 1338.
30. Emond, supra note 7 at 348.
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35. See Social Theory, supra note 18.
36. For a critique of individualism and a call for a return to a kind of yeoman democracy rooted in local community, see e.g. Bookchin, supra note 5 c. 8.
37. See e.g. Sagoff, supra note 4 at 18.
38. See e.g. Lowi, T., The End of Liberalism: The Second Republic of the United States, 2d ed. (New York: Norton, 1979) at 22Google Scholar: “[P]luralism [was] the intellectual core of the new liberalism which would eventually replace capitalism as the public philosophy … the new public philosophy, interest-group liberalism, is the amalgam of capitalism, statism, and pluralism.” Ibid. at 36: “[T]he zeal of pluralism for the group and its belief in a natural harmony of group competition tended to break down the very ethic of government by reducing the essential conception of government to nothing more than another set of mere interest groups.”
39. For example, more than 48% of the American federal budget is devoted to direct income transfers: Schuk, P., “Regulation, Non-Market Values, and the Administrative State” (1983) 92 Yale L.J. 1592 at 1605Google Scholar.
40. See e.g. Hartz, L., The Liberal Tradition in America: An Interpretation of American Political Thought Since the Revolution (New York: Harcourt, Brace, 1955) at 5–6Google Scholar: “One of the central characteristics of nonfeudal society is that it lacks a genuinely revolutionary tradition … [I]t has within it, as it were, a kind of self-completing mechanism, which ensures the universality of the liberal idea.” Ibid. at 263: “Thus, notwithstanding non-liberal trend: liberal convictions [are] held in the face of non-liberal innovations, best illustrated by the rugged individualism of the American farmer who is supported on all sides by the state … [I]t is what lies at the bottom of the belief many Americans even now have that America is a ‘free enterprise’ country …”
41. See e.g. Ragsdale, supra note 24 at 436.
42. Presser, supra note 28 at 892, 899. See also Bookchin, supra note 5 at 220: “[T]he acquisitive individual constitutes a social malignancy that threatens to destructure and undermine not only social bonds but also the natural world.”
43. McNeil, supra note 34 at 919.
44. See e.g. Wolff, E., “Changing Inequality of Wealth” [Amerian Economic Association Papers and Proceedings, May 1992] published in 82 (1992) American Economic Review 552 at 557Google Scholar: “[I]nheritance contributed 32 percent of the overall growth of wealth over the two decades [1962–1983], and inter vivos transfers accounted for 50 percent of the wealth of cohorts under age 50.”
45. Weitzer, R., “Law and Legal Ideology: Contributions to the Genesis and Reproduction of Capitalism” (1980) 24 Berkeley Journal of Sociology 137Google Scholar.
46. See e.g. Klare, K., “Law Making as Praxis” (1979) 40 Telos 123 at 126Google Scholar: “[T]the distinctive form of legal practice in liberal capitalist culture, liberal legalism, is itself an alienation. Because of its connection with official coercion; its purported (i.e. ideological) separation of morals and politics from judicial action; its overwhelming emphasis on the formal, adjudicatory model of dispute resolution; its impersonal, anti-participatory character; its insistence on the presentation of all moral and allocational judgements in the form of general, suprahistorical rules; its pervasive attempt to separate form and substance in legal decision-making; its control by experts socialized in elite institutions and distant from the lived reality of everyday life in capitalist society, and its exaltation of the claims of property over those of human dignity, it is inevitable that the form of liberal legal justice must be a negation of the human spirit even when the impulse to justice forces its way into the content of particular legal decisions.” [Emphasis in original]. To that list of alienating aspects of liberal law we can add the alienation of individuals from the environmental commons, and from nature itself, through the exclusionary aspect of private property and contractual relation—only that which has legally enforceable rights of exclusion has value, and that value vests exclusively in individuals and not in community.
47. See e.g. Searle, J., “Private Property Rights Yield to the Environmental Crisis: Perspectives on the Public Trust Doctrine” (1990) 41 South Carolina L. Rev. 897 at 913Google Scholar: “Historically, private property owners were buttressed by nineteenth century laissez faire ideals of ownership and enjoyed unfettered freedom within the domains of their parcels of property. Traditionally sacrosanct property rights, including the right to exclude, were aptly described as the right of the property's ‘commander’ ‘to look any man in the eye and tell him to go to hell’. Private ownership also included the right to manage the property and direct the manner in which resources were to be used and exploited.”
48. See e.g. Attorney General v. Birmingham (1858), 4 K & J 528 (Ch.), 70 E.R. 220: “[I]n the case of an individual claiming certain private rights, and seeking to have those rights protected against an infraction of the law, the question is simply whether he has those rights … [I]t is a matter of almost absolute indifference whether the decision will affect a population of 250,000 or a single individual carrying on a manufactuary for his own benefit … I am not sitting here as a committee for public safety, armed with power to prevent what, it is said, will be a great injury not to Birmingham only but to the whole of England … [T]he question whether the town of Birmingham is concerned, or whether … the defendants are carrying on these operations for their own profit, is one which is entirely beside the purpose to argue in this court.”
49. See, e.g. Stone, supra note 4. Also the dissent by Justice Douglas in Sierra Club v. Morton, 405 U.S. 727 (1972) [hereinafter Sierra Club]. See also Hutchinson, A., “A Poetic Champion Composes: Unger (Not) on Ecology and Women” (1990) 40 U.T.LJ. 271 at 291Google Scholar: “[E]ven those traditionalists who have rebelled against… economistic number-crunching have succumbed to the temptation to extend rights discourse to the environment. This is an imperialistic move that arise more from a concern for humanistic morality than from a concern for progress towards ecological soundness.”
50. See, in Brundtland Report, supra note 17, the recommendation of five-fold growth as condition for affording Ecologically Sustainable Development.
51. Tarlock, D., “Earth and Other Ethics: The Institutional Issues” (1988) 56 Tennessee L. Rev. 43 at 75Google Scholar.
52. Social Theory, supra note 18 at 84.
53. See e.g. ibid. at 92–93.
54. Wolff, supra note 44
55. See e.g. Social Theory, supra note 18 at 93: “[An] inability to grasp how and why the relations between … social structure and human agency may change … deep structure social theory disorients political strategy and impoverishes programmatic thought by making both of them subsidiary to a ready-made list or sequence of social orders.” [Emphasis added].
56. Beck, supra note 6 at 5, notes the “unbroken dominance of the false alternative”— in our example (say) liberalism versus socialism—wherein “the reality of the excluded middle remains as alien as if it had fallen from another star.”
57. See e.g. False Necessity, supra note 1 at 83.
58. See also e.g. Veblen, T., The Theory of the Leisure Class (New York: Penguin Books, 1979) at 90–91Google Scholar: “Institutions are products of the past process, are adapted to past circumstances, and are therefore never in full accord with the requirements of the present… [T]hese habits of thought, points of view, mental attitudes and aptitudes, or what not, are therefore themselves a conservative factor.” Ibid. at 204: Similarly this conservatism transcends class divisions in that “[T]he abjectly poor … are conservative because they cannot afford the effort of taking thought for the day after tomorrow; just as the highly prosperous are conservative because they will have small occasion to be discontented with the situation as it stands today.”
59. Herzog, D., “Rummaging through the Emperor's Wardrobe” (1988) 86 Michigan L. Rev. 1434 at 1436CrossRefGoogle Scholar.
60. See e.g. Social Theory, supra note 18 at 202: “For lack of a credible view of how social worlds get remade we come to measure the realism of a proposal by its closeness to whatever exists. The Utopian plans we then devise turn out on closer inspection to be merely the announcement of a longing.”
61. See e.g. Social Theory, supra note 18 at 3. Institutional arrangements would include frameworks for economic capital, government power (including legal rules and constitutional arrangements), technical expertise, business organization (which separates task-defining and task-executing activities), private contractual relations, models of private community (family, friendship), models of democratic organization, and so on.
62. This idea—of “‘leverage’ … [as] the idea that ‘small, well-focused actions can sometimes produce significant, enduring improvements’”—has been used in business management as an application of chaos theory (the “basic insight that minute changes can lead to radical deviations in the behaviour of a natural system”). See e.g. Freeman, D., “Is Management Still a Science?” (November-December 1992) Harvard Business Review 26 at 30, 37Google Scholar. See also, e.g. Beck, supra note 6 at 3. “[T]he transition from one social epoch to another could take place unintended and unpolitically, bypassing all the forums for political decisions, the line of conflict and the partisan controversies.”
63. Jencks, C., What is Postmodernism? (New York: St. Martin's Press, 1986) at 9Google Scholar.
64. Ibid. at 62.
65. Note here a resemblance to an early school of economics called “Institutional Economics.” See the classic article by Hamilton, W., “The Institutional Approach to Economic Theory” (1919) 9 American Economic Review Supplement 309 at 316Google Scholar: “[T]he whole complicated affair which we call Modern Industrialism has existed for a very brief period in human history. If control is to be exercised, it is not to be by tinkering with this or that. It must be by changing the nature or functions of the institutions which make up our scheme of economic life.” [Emphasis added]. Note that, as a largely forgotten “path not taken” in economics, this school represents the very kind of historical anomaly which could have been a seed for Professor Unger's own theory, as well as an example of a site from which it draws some of its imaginative possibilities.
66. See e.g. Social Theory, supra note 18 at 200–01: “Institutional fetishism is the imagined identification of highly detailed and largely accidental institutional arrangements with comprehensive and vague ideals like freedom and equality. The institutional fetishist may be the classical liberal who identifies representative democracy and the market economy with a makeshift set of governmental and economic arrangements that happen to have triumphed in the course of modern European history … Structure fetishism is a related mistake cast at a higher order of generality … Each fails to take modern historicism to the final step: understanding that the relations between our contexts and our freedom is itself up for grabs in history.” [Emphasis added].
67. See e.g. Stone, supra note 4; Tribe, supra note 2. Dissent by Douglas J. in Sierra Club, supra note 49.
68. See e.g. False Necessity, supra note 1 at 12: “People treat a plan as realistic when it approximates what already exists and as Utopian when it departs from current arrangements. Only proposals that are hardly worth fighting for—reformist tinkering—seem practicable.” Ibid. at 39: “[W]e are led to a bastardized and paralyzing conception of political realism: a conception that dismisses far-reaching reconstructive ideas as Utopian fantasies and immediate, partial reconstructions as reformist tinkering.” Ibid. at 331: “So long as we lack the means for … a synthesis we remain condemned to the surrogate and arbitrary conception that measures realism by the closeness of proposed practice to current practice … As a result we are torn between dreams that seem unrealizable and prospects that hardly appear to matter.” [Emphasis added].
69. Social Theory, supra note 18 at 7.
70. Again, note a similar approach in the broader aspiration toward authentic democracy demonstrated in Bookchin, supra note 5 c. 8. Bookchin reaches back to notions of a yeoman democracy in early New England.
71. Note that, according to A. Giddens in Beck, Giddens & Lash, supra note 6, aspirations to control and stability have always been problematic in light of the contingency of human life, but are now even more so as the successes of modernity have increased our areas of unpredictability, due to the very growth in human knowledge. That is to say, Enlightenment aspirations toward control and direction of human life have actually been undermined by modernity. If that is so, then the style of social theory advocated here becomes even more pertinent.
72. See Social Theory, supra note 18 at 207. See also at 93: “[T]he radical project or the enterprise of the modernist visionary: the effort to seek our individual and collective empowerment through the progressive dissolution of rigid social division and hierarchy and stereotyped social roles.”
73. Ibid. at 6.
74. Ibid. at 207
75. Ibid. at 209.
76. Ibid. at 210.
77. Beck, supra note 6, would include as well nuclear, genetic and chemical hazards.
78. Bookchin, supra note 5, would characterize this more specifically in terms of the loss of a genuine, participatory, democracy.
79. The prototype is the assembly line mass production of motor vehicles; the general theme is that of mechanized industry and “extreme, technical division of labor.” See False Necessity, supra note 1 at 184, whereby job functions are reduced to repetitive, specialized tasks of execution with only manual input from workers. The contrast is with, for example, visions of civic republicanism in 19th-century America, in which individuals were, or realistically aspired to be, self-employed tradespersons, craftspersons, small businesspersons, etc., whose work lives inextricably combined task conceptualizing as well as task executing activities. Such individuals might more likely actively engage social and political life as extensions of their self-realizing work lives or vocations.
80. See e.g. Piore, M. & Sabel, C., The Second Industrial Divide: Possibilities for Prosperity (New York: Basic Books, 1984)Google Scholar. Similarly, this turn-of-the-century conception of the “science” of management routinized production and shifted task conceptualizing activity to managerial hierarchie: “a rigid separation of the conception and the execution of tasks” (at 126); “finding the one best way to organize the flow of production among allegedly stupid and habit-ridden workers” (at 142). “[T]his is the prototype ‘mechanical picture of organization’.” (at 247).
81. Social Theory, supra note 18 at 210. The author puts it thus: “[A]s society overcomes poverty the paramount condition of material progress becomes the plasticity of social life … [P]lasticity becomes more important than surplus extraction even in societies that remain poor by our contemporary standards.”
82. For example, those relations (and perhaps those of contractual relations as well) could be constrained by a communal interest in maintaining a quality environment; private rights in the commons could be subject to a similar restriction. Such rights could be invoked by private individuals. There are many possible versions of disaggregated property rights which could serve environmental values.
83. For example, if one sees alienation in social relations as an unexpected consequence of liberal individualism then any trajectory toward communal (e.g. environmental) values might work in reverse.
84. For example, in Keynesian tax and transfer measures to finance massive environmental costs, or in radical economic disruption due to environmental crises.
85. For example, a heightened sense of mutual vulnerability, leading to a shift toward environmental values and a questioning of materialist values.
86. Aspects such as the appeal to a past spiritual connection to “God's work,” a rebellion against materialist values, the condemnation of Big Business and Big Government, and general discontent over existing arrangements could all coalesce into a religious revival (especially in the context of the approaching millennium).
87. See e.g. Elliott, E., “A New Style of Economic Thinking in Environmental Law (Foreword)” (1991) 26 Wake Forest Law Review 1 at 5Google Scholar: “World wide environmental law may be the most ambitious attempt ever by human beings to use law to shift resources and alter behaviour.” See also Babich, A., “Understanding the New Era in Environmental Law” (1990) 41 South Carolina Law Review 733 at 733Google Scholar, note 1, quoting W. Ruckelshause, former Administrator of the U.S. Environmental Protection Agency: “[A] modification is required in society comparable in scale to only two other changes: the agricultural revolution of the late Neolithic period and the Industrial Revolution of the past two centuries.”
88. See e.g. Marx, K., “A Contribution to the Critique of Political Economy” (1859) in Bottomore, T. B. & Rubel, M., eds., K. Marx, Selected Writings in Sociology and Social Philosophy (London: Watts, 1961)Google Scholar from the Preface: “The mode of production of material life determines the general character of the social, political, and spiritual processes of life. It is not the consciousness of men that determines their being but, on the contrary, their social being determines their consciousness.” See also Marx, K. & Engels, F., The German Ideology (manuscript of 1845–1846) in Arthur, C. J. ed., The German Ideology: Karl Marx and Frederick Engels (New York: International Publishers, 1970)Google Scholar from Part 1: “[W]e do not set out from what men say, imagine, conceive, nor from men as narrated, thought of, imagined, conceived, in order to arrive at men in the flesh. We set out from real, active men, and on the basis of their real life-process we demonstrate the development of the ideological reflexes and echoes of this life-process.”
89. Klare, K., “Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937–1941” (1978) 62 Minnesota L. Rev. 265Google Scholar.
90. See e.g. Penz, G., Consumer Sovereignty and Human Interests (Cambridge: Cambridge University Press, 1986) at 103CrossRefGoogle Scholar: “[T]he personality itself is in large part shaped by the social environment, which, in turn, owes much to the system of production and distribution … people's ‘character structures’ … are endogenously shaped.”
91. See e.g. Clastres, P., Society Against the State: Essays in Political Anthropology, trans. Hurley, & Stein, , (New York: Zone Books, 1987) at 197Google Scholar: “[A]n economic anthropology appears justified when the refusal of work disappears, when the taste for accumulation replaces the sense of leisure … when … [an] external force … makes its appearance in the social body … For man in primitive societies, the activity of production is measured precisely, delimited by the needs to be satisfied … [O]nce its needs are fully satisfied nothing could induce primitive society to produce more, that is, to alienate its time by working for no good reason when that time is available for idleness, play, warfare, or festivities … [I]n primitive society—an essentially egalitarian society—men control their activity, control the circulation of the products of that activity: they act only on their own behalf.” Ibid. at 198: “Everything is thrown into confusion therefore when the activity of production is diverted from its initial goal, when, instead of producing only for himself, primitive man also produces for others, without exchange and without reciprocity. That is the point at which it becomes possible to speak of labour … when the activity of production is aimed at satisfying the needs of others … when the activity of production becomes alienated, accountable labour, levelled by men who will enjoy the fruits of that labor, what has come to pass is that society has been divided into rulers and ruled, masters and subjects.”
92. Marx & Engels, supra note 88.
93. See e.g. Forbath, W., “The Ambiguities of Free Labour: Labour and the Law in the Gilded Age” (1985) 85 Wisconsin L.Rev. 767 at 804Google Scholar: “Until the 1880's and 1890's, and often beyond, manufacturers in many industries acquiesced in and often identified with a vision of work occurring within a web of custo—morality and social obligation, not labour market considerations, constituted the legitimate basis for the social relations of production.”
94. Ibid. at 783.
95. Note also related themes in Bookchin, supra note 5 at 234. The idea in economic life being “to politicize the economy by dissolving economic decision making into the civic domain” with the goal of “a genuine politics, and empowered citizenry and a municipalized economy” (at 243).
96. I mean here “voluntarist” in the sense of viewing individuals as voluntarily choosing to sell their labour to large-scale enterprises, notwithstanding the illusory nature of that choice—“illusory” in the sense that the real agenda was perceived gains from scale economies, narrow task specialization, allocative efficiency, etc., in which context this alleged voluntary sale of labour was simply a precondition for enterprises realizing those gains.
97. See e.g. Piore & Sabel, supra note 80 at 305. See also Bookchin, supra note 5.
98. See e.g. Forbath, supra note 93.
99. See e.g. Beck, Giddens & Lash, supra note 6 at 9-10, wherein Beck notes that risks such as global warming are so incalculable that they are presented rather as “scenarios” and become “a form of involuntary self-refutation of scientific rationality … where despoliation is unattributable, the economy, the public and the media begin to play Russian roulette.”
100. See e.g. Piore & Sabel, supra note 80 c. 10–11. I am adopting the usage of the authors. Professor Unger uses the term “petty commodity production.” False Necerssity, supra note 1 at 342: “[P]etty commodity production [is] the economy of small-scale, relatively equal producers, operating through a variable mix of cooperative organization and independent activity.”
101. Piore & Sabel, ibid. at 5.
102. Piore & Sabel, ibid. at 17: “Flexible specialization is a strategy of permanent innovation: accommodation to ceaseless change, rather than an effort to control it.”
103. See Piore & Sabel, ibid. at 265. Present examples include specialized industrial districts in Northern and Central Italy, the New York city garment district; historical examples include European regional centres in Birmingham, Solingen and Lyon.
104. Note also a rough correspondence to Bookchin's “confederal municipalism,” supra note 5, e.g. at 222. Community as “a municipal association of people reinforced by its own economic power, its own institutionalization of the grass roots, and the confederal support of nearby communities into a territorial network on a local and regional scale.”
105. See e.g. Piore & Sabel, supra note 80 at 298–99: “[W]ithin a system of flexible specialization, firms depend on one another for sharing of skills, technical knowledge, information on opportunities, and definitions of standards … [C]hange of any kind requires flexibility … flexibility depends on cooperation; cooperation, on trust; and trust, on those pledges of mutual aid that fuse bargaining parties into a community.”
106. See e.g. Piore & Sabel, ibid. at 300–01.
107. Piore & Sabel, ibid. at 269.
108. See Best, M., The New Competition: Institutions of Industrial Restructuring (Cambridge, Mass.: Harvard University Press, 1990) at 251Google Scholar.
109. Piore & Sabel, supra note 80 at 278.
110. See e.g. Social Theory, supra note 18 at 26–31.
111. See e.g. Piore & Sabel, supra note 80 at 278.
112. Best, supra note 108 at 3.
113. See Best, ibid. at 18, referring to “inter-firm cooperation predicated on the common interest of all firms in precluding privately rational actions which undermine collective rationality”—the tragedy of the commons.
114. Note a similar theme in Bookchin, supra note 5 e.g. at 235. “[T]he famous contradiction or antagonism between town and country, so crucial in social theory and history is transcended by the township … in which an urban entity is the nucleus of its agricultural and village environs—not a domineering urban entity that stands opposed to them.”
115. See e.g. Frug, G., “The City as a Legal Concept” (1980) 93 Harvard L. Rev. 1057CrossRefGoogle Scholar.
116. Piore & Sabel, supra note 80 at 305.
117. See e.g. Best, supra note 108 at 277: “[E]conomic degradation is related to economic insecurity … [T]he ecological threat, like the economic, demands a prominent role for community, if on a much larger scale.”
118. See e.g. ibid. at 20.
119. Barthelme, D., “The Rise of Capitalism” in Barthelme, D., ed., Sixty Stories (New York: Putnam, 1981) at 207Google Scholar.
120. False Necessity, supra note 1 at 331.
121. Concluding remarks to Professor Unger's Alternative Pluralism lectures, Harvard Law School, December 1992.