We are grateful to John Meyer for his thoughtful and thought provoking review of our recent book. His essay shows admirably the wide-ranging agreement of our analysis and his. It also reveals a point upon which we may disagree, though only time and continued discussion can tell for sure. Specifically, Meyer doubts that a meta-consensus, in which differently situated persons in different parts of the world resolve environmental disputes in similar ways, can be produced by democratic deliberation. We, on the other hand, suggest that no imaginable set of circumstances not involving deliberation is likely to result in such a meta-consensus. To understand how we and Meyer appear to be divided on this point, and yet might not really disagree at all, requires that the notion of a meta-consensus be unpacked a bit.
Dryzek and Niemeyer (Reference Dryzek and Niemeyer2006) distinguish three varieties of meta-consensus—the normative, the epistemic, and preference meta-consensus. The research methodology we propose asks groups of experimental subjects to arrive at a normative consensus, involving a decision about which two or more nation-states should prevail in a concrete but hypothetical international dispute. This deliberative task is facilitated by imposition of an epistemic meta-consensus upon these panels or “juries,” in the form of stipulated facts of the case that largely preclude empirical arguments. The result that is emerging from a still-small number of these experimental trials is an increasingly clear preference meta-consensus—a collective judgment about the range of permissible outcomes. Our ultimate suggestion is that a sufficient number of these “rulings” could be subjected to a process of restatement similar to that employed by the American Law Institute in aggregating and analyzing thousands of rulings in a variety of fields of litigation. It is the absence of evidence of the existence, or likelihood, of this final step that concerns Meyer about our book.
The obvious response to this concern is that doing this requires both another book and a far larger number of experimental trials. As true as that is, it still could not produce evidence of the existence of or the likelihood of emergence of a meta-consensus. We disagree with Meyer's claim that “by definition, this meta-consensus cannot be a product of deliberation.” True, we imagine an expert distillation of juristic principles to be the next step, but that distillation must itself be the result of the efforts of many experts from a diversity of cultures and places who arrive at a consensus by deliberation. More important, such a consensus distillation must be anticipatorily constrained inasmuch as it must have the potential to be accepted by the international political and legal system either in nation-state-ratified agreements or in customary law—just as in the U.S., restatements are merely persuasive authority in American courts and legislatures until they become operational by being ratified in legislative statutes and court opinions. In the international system, this acceptance can only happen by nearly unanimous consent. Our objective as merely two academic researchers could never be that we ourselves will create some part of a Restatement of the International Law of the Environment; even if that were our objective, the restatement we produced could be neither evidence of a meta-consensus nor more than the first small step down the path toward one. Our objective instead has been to develop and assess the potential of an analytical tool that can (not must or will or even should!) facilitate the development of a meta-consensus if that job is taken up more widely. Analyzing and assessing the broader context for the possible achievement of any environmental governance meta-consensus, however partial, will be the objective of our next book. All actors engaged in environmental governance need to better understand the nature of agency in the international arena, the demands to achieve adaptiveness in environmental protection, various obligations regarding access to and allocation of environmental goods, mechanisms to assure accountability for actions, and the architecture of the system of governance as it evolves. It will of necessity require them and us to engage the everyday concerns posed by the materiality of human existence. We look forward to meeting John Meyer again along the path that we shall be traveling.
