Our law should shift to looking at relationships, such as between humans and their ecosystems, instead of just being about individual rights and rights-claims.
Nature is being destroyed, and in turn, human survival is threatened. The optimism of the first decade of this millennium is gone, replaced by a broad recognition by scientists and public alike of the perilous situation we are in.
This situation calls for a radical response – which should include transforming our legal system so that protecting nature is at the core instead of the periphery.
The most recent UN Report on biodiversity, the Global Biodiversity Outlook 5, has sounded the alarm loudly and clearly.
The Report is an update on 20 biodiversity targets which were agreed internationally by states in 2010. Not one of the targets was fully achieved; only 6 of the 20 were partially achieved; and 14 of them were failed. The warning from the Executive Secretary of the Convention on Biological Diversity, who published the report, is clear.
“Earth’s living systems as a whole are being compromised. And the more humanity exploits nature in unsustainable ways and undermines its contributions to people, the more we undermine our own wellbeing, security and prosperity.”
This is a similar warning to the one given by the Intergovernmental Panel on Climate Change in their 2018 report, in which they were clear that radical action was needed to reduce carbon emissions by about 50 percent by 2030 and called for ‘rapid and far-reaching transitions’.
Although Boris Johnson recently committed to protect 30 percent of the UK’s land by 2030, as part of the ‘Leaders Pledge for Nature’, this is empty rhetoric, obviously so given the failure over the last decade.
As the RSPB describes: “The government creates an impression of taking this stuff seriously but as soon as you dig down into the action that’s just not reflected.”
We know that radical change is needed to avoid catastrophe, and it is vital that we think about this in terms of system change. Relying on each person to doing their bit, in a political framework based on individual responsibility, has failed, and we must change the systems that we all act within.
For the most part, we know what sort of change is required in terms of social change, political change and economic change, with reports, targets, frameworks and new systemic approaches proposed. But law as a system has been, for the most part, overlooked.
Our legal system is an interwoven part of our society and our economy. It structures human activity and social relations, and it affects how we understand the ourselves and the world.
For example, the way law focuses on individual rights reproduces our individualistic conception of society and the way we think of freedom as individual entitlement without responsibility. Yet despite this role law plays, it has mostly faded into the background, seen as a neutral and technical social system instead of a powerful influence in our way of life that itself must be changed.
Humans are interconnected with each other and with the natural world. Yet our society, economic models and legal systems do not recognise this, seeing us instead as atomised individuals.
In our legal systems, individual (and corporate) rights are the primary building block, and when we think about freedom, it is individual freedom that we think about. This is mistaken: in our interconnected world, individuals live in a dense network of relations and relationships. Society is not an aggregation of individuals, but a dense, interwoven web.
Our legal system is based in this flawed individualistic model, seeing us as separate from each other and from the natural world. Instead, it must shift to a paradigm based on interconnection, recognising and working to change the network of relationships we live in.
The network of relationships which make up our society can be empowering and sustaining, or they can be harmful and destructive. They can create conditions of freedom and allow us to live fulfilling and sustainable lives, or they can smother, abuse and exploit us. Law, as part of this, can be used to oppress people or to liberate them.
Once we recognise this, we should see that law’s role should be to transform this web of relationships – social, economic and ecological relationships – from harmful to harmonious.
To be clear, the argument is not that law should be used to influence these relationships, and nor is it that law is the only way we should do this.
Instead, the point is that law already influences all sorts of relationships in society, and that our legal system itself must be transformed as part of the broader social and political change that is needed.
Earth Jurisprudence points to the way that the relationship between humans and the rest of Nature is currently mediated by law. In our legal systems, nature features chiefly as property which can be owned, dominated and plundered by human owners.
Individuals and corporate actors are free to destroy ecosystems and cause ecological harm in their search of profit. Environmental law is secondary, almost an afterthought. Instead, protecting Nature should be the norm, not the exception, and sustainability should be a core principle across our entire legal system.
Earth Jurisprudence proposes a transformation of legal systems to address this: to make Nature an equal part of our legal system by granting it rights. This would give Nature the ability to protect itself, via human intermediaries.
Recognising Nature’s rights in our legal system would also help us to see nature as valuable in its own right, instead of just as a resource for us to use. It would also embed in our culture the idea that we are part of a community of life on this Earth, instead of that our environment is some ‘other’ which we are separate from and more important than.
Legal transformation has been mostly overlooked in the last decade, with one exception: the idea of ecocide.
The Stop Ecocide campaign seeks to make the destruction of nature an international crime. This call has been picked up by the Extinction Rebellion movement and mentioned by youth climate strikers as part of the change they call for. Making ecocide a crime is certainly welcome, but the transformation that our legal system needs is far bigger, and it is a shame that ideas like Rights of Nature have not yet received broader recognition.
Legal rights of nature have been introduced in some places around the world. They are recognised in Ecuador’s constitution, which will soon be before the court in a legal challenge seeking to protect a nature reserve from mining permits.
In New Zealand, a particular river system was given legal personhood, and in Colombia and India courts have developed rights for particular ecosystems.
Rights of Nature is only one part of the transformation of law that we need. The idea of interconnection can be the core of this framework, helping us to see the broader shift that is needed.
Our law should shift to looking at relationships, such as between humans and their ecosystems, instead of just being about individual rights and rights-claims. It has the potential to help change how we relate to each other, seeing ourselves collectively instead of individually.
We could also see the role of law as being about transforming the network of relationships that make up our society, instead of being about protecting individual right and individual freedoms. In this view, law could be used to transform social relations which are unjust or exploitative to being just, harmonious and empowering.
The Interconnected Law project seeks to seeks to develop these ideas and, ultimately, to transform our legal systems as part of the broader political and social change that we need.
Alex May is the founder of the Interconnected Law Project which seeks to develop and share ideas about law and ultimately transform our legal systems. If you are interested in discussing the ideas further, working or partnering with us or helping fund the project, please get in touch — you can find us at www.interconnectedlaw.com or @InterconLaw on twitter.