Posner ’ s Principle of Justice an Adequate Basis for Environmental Law ? by Clem Tisdell June 2009 ECONOMICS , ECOLOGY AND THE ENVIRONMENT THE UNIVERSITY OF QUEENSLAND

Posner adopted the economic principle of wealth maximization as a guiding principle for the dispensation of justice. This resulted in his endorsing the Kaldor-Hicks principle (also known as the potential Paretian improvement principle) as a basis for just laws. This article explores whether this principle is an adequate basis for environmental law. As can be deduced from Fleming, the legal approach adopted by Posner is by no means new because early British tort law was applied in a manner intended to foster economic growth. Nevertheless, the wealth maximization principle is not adequate as a basis for just environmental laws because for one thing it ignores questions involving changes in income distribution. Consequently, Rawls’ principle of justice is examined and compared with that of Posner. The role of property rights in relation to the state of the environment is assessed in the light of Posner’s principle of justice, as is Coase’s theorem supporting a clear definite allocation of private property rights as a solution to environmental problems. Furthermore, in this context, the justification for the taking of private property by the state is examined. It is argued that additional factors to wealth maximization and income distribution must be taken into account in determining whether laws are just. In addition, it is suggested that it is not the sole purpose of the law to dispense justice.