Rewilding the law

| 27th August 2018
Deforestation to make way for oil palm plantation in Brazil

Deforestation to make way for oil palm plantation in Brazil

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Our legal system needs a radical overhaul that asserts the rights of the whole ecosystem. A forthcoming conference will discuss the set out the vision for a Wild Law. SHEHANA GOMEZ reports

Earth jurisprudence asks us to re-examine the assumptions underlying our systems of law and governance, and shift them from being human-centered to being earth-centred or ecocentric.

Re-wilding the Law might sound like an odd proposition, even a contradiction. Law is not meant to be wild.

It’s supposed to bring in a civilised, organised, orderly way of doing things. It sets out clear rules which govern our relationships with each other and the world around us.

So how can the law be wild?

Earth jurisprudence 

The problem is that the laws we have created often do not reflect the ecological reality we live in. They do not reflect the laws of the earth.

The wild law view is that this is a fundamental problem underlying not just individual laws, but our whole system of law and governance. It has led to the severe environmental crisis we now find ourselves in.

The term wild law was coined by the South African environmental lawyer and author Cormac Cullinan. He argues that we live in a human-centred, or anthropocentric, civilisation, a “homosphere” which is cut off from the natural world around us. We see ourselves as separate from, and superior to, the rest of nature, when in reality we are not.

Cullinan draws on principles of earth jurisprudence, a philosophy articulated by the late Catholic priest and eco-philosopher Thomas Berry.

Earth jurisprudence asks us to re-examine the assumptions underlying our systems of law and governance, and shift them from being human-centered to being earth-centred or ecocentric.

Radical shift

Moving to an earth-centred way of seeing the world means seeing ourselves as close to and inextricable from nature. This reflects the reality that we cannot live without water, oxygenated air and soil.

An ecocentric view also sees nature as having an inherent right to exist in the same way as humans do: we would no longer be superior. These ideas are not new, indeed, they are present in the philosophies of many indigenous peoples. They would also be familiar to 'deep green' or 'dark green' ecologists.

Wild law re-aligns our legal and governance systems in accordance with an ecocentric world view. It is more about creating laws that are in harmony with the earth, it natural processes and cycles,  than imposing laws on it.

The conventional legal approach is regulatory. It believes that the environmental crisis comes from simply do not have strong enough regulation and/or not adequately enforcing what we do have. Wild law therefore entails a radical, paradigm shift. 

One legal tool that can be used to give effect to wild law is extending legal rights to nature, both animate beings including animals and plants, and inanimate natural features such as mountains and rivers.

Legal personality

Currently, human beings can own nature and do what we like to it subject to certain regulations. It is essentially a relationship of property and “rights over”. Giving legal rights to nature makes it the subject, and not just the object, of rights.

In doing so, it recognises that nature has an inherent value, separate from its value to human beings. 

It is important to stress that this is not giving human rights to nature, though it does give legal personality. The rights would simply enable a mountain, river or bird to do what it naturally does. In Berry’s words, the rights to “exist, thrive and renew its natural cycles”. 

Making nature a “legal person” goes further than the legal protections is normally has.

Where does wild law and rights of nature already exist? The United Nations set up a Harmony with Nature programme in 2012, which promotes an ecocentric world view. The UN General Assembly has adopted a number of resolutions embracing this. These resolutions are part of international law, although they are not binding on countries.

Enforceable rights 

The Universal Declaration of the Rights of Mother Earth was drafted at the World People’s Conference on Climate Change and Mother Earth’s Rights, held in Bolivia in 2010, and was incorporated into Bolivian law in the same year.

More famously, the 2008 constitution of Ecuador  gives legally enforceable rights to nature. Also in South America, the Supreme Court of Colombia only this year recognised that the Amazon rainforest has legal rights of its own, in a case that involved deforestation and climate change. It had previously recognised rights of the Atrato River. 

The first 'rights of nature' law was enacted in the USA in 2007. It was an ordinance, a local law passed in the borough of Tamaqhua, Pennsylvania, that gave rights to the local river ecosystem, due to concerns that high levels of contaminated sewage sludge were polluting it.

There are now thirty rights of nature ordinances in the USA. An application to pass a similar local law, a by-law in English town of Frome in Somerset, is currently in progress. If successful, it would be the first of its kind in the UK.

In New Zealand, legal personality has been granted to a river, a national park and most recently a mountain. Meanwhile, the High Court of Uttarakhand in India has recognised the rights of two major rivers, and in a groundbreaking judgement only last month, those of the whole of the animal kingdom. 

Get involved

The Wild Law Special Interest Group (SIG) of the UK Environmental Law Association (UKELA) was set up in 2005. It held a series of annual conferences on wild law.

These were later replaced with wild law weekends away every year, usually in Scotland or the Lake District, which continue to take place.

In addition, this year the SIG is organising a one day conference to be held on 21 September at Bristol University. The purpose of the conference is to provide a platform for the discussion of wild law generally.

There will be various presentations on rights of nature, both in theory and real life examples of it, as well as other aspects of wild law. The programme and booking information can be found here

This Author

Shehana Gomez is a co-convenor of the Wild Law special interest group of the UKELA.

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