Analysis of the pollution problem as a function of population density o uncovers a not generally recognized principle of morality, namely: the § morality of an act is a function of the state of the system at the time it is •Ij performed.8 Using the commons as a cesspool does not harm the general ■g public under frontier conditions, because there is no public; the same behavior in a metropolis is unbearable. A hundred and fifty years ago a plainsman could kill an American bison, cut out only the tongue for his dinner, and discard the rest of the animal. He was not in any important sense being wasteful. Today, with only a few thousand bison left, we would be appalled at such behavior. [...]
That morality is system-sensitive escaped the attention of most codi-fiers of ethics in the past. 'Thou shalt not ...' is the form of traditional ethical directives which make no allowance for particular circumstances. The laws of our society follow the pattern of ancient ethics, and therefore are poorly suited to governing a complex, crowded, changeable world. Our epicyclic solution is to augment statutory law with administrative law. Since it is practically impossible to spell out all the conditions under which it is safe to burn trash in the back yard or to run an automobile without smog-control, by law we delegate the details to bureaus. The result is administrative law, which is rightly feared for an ancient reason - Quis custodiet ipsos custodes? - 'Who shall watch the watchers themselves?' [...]
Prohibition is easy to legislate (though not necessarily to enforce); but how do we legislate temperance? Experience indicates that it can be accomplished best through the mediation of administrative law. We limit possibilities unnecessarily if we suppose that the sentiment of Quis custodiet denies us the use of administrative law. We should rather retain the phrase as a perpetual reminder of fearful dangers we cannot avoid. The great challenge facing us now is to invent the corrective feedbacks that are needed to keep custodians honest. We must find ways to legitimate the needed authority of both the custodians and the corrective feedbacks.
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