ABSTRACT
This chapter argues that greater reliance on market-based approaches to endangered species protection, and identifies the limited role of science in choosing among policy alternatives. For Willard Hurst and most of his followers, legal history is the story of reliance on the law to achieve human objectives—a view which has come to be known as legal instrumentalism. The 19th century instrumentalists, about whom Hurst writes, were explicitly concerned about the improvement of human welfare. The instrumentalist perspective suggests thinking about law as the technology of social existence. Human life is filled with uncertainties rooted in both nature and society. Much law is concerned with the allocation of scarce resources. Many advocates of environmental protection might prefer to think of environmental law in ethical terms. Advances in the ecological and environmental sciences have been invaluable to the pursuit of environmental protection.
