Our planet, the natural world we live in and with, is being destroyed by us. It is more than that we are damaging our environment, what surrounds us; we are destroying the conditions which we need to live and survive.
This has been known for years, yet still we continue. Climate change is probably the best known issue that we face, but there are other aspects of our ecological destruction too, including habitat loss, soil degradation, freshwater scarcity and mass extinctions.1 Rockström’s ‘Planetary Boundaries’ approach finds that we are exceeding three of the nine planetary boundaries,2 and the 2005 UN Millenium Ecosystem Assessment found that 60% of the ecosystem services examined are being degraded or used unsustainably.3 The recent UN Report on global biodiversity made clear that of 20 internationally-agreed biodiversity targets, none have been fully achieved and only 6 partially achieved.4
This destruction is part of our way of life. It is a problem with our economic system, that ‘natural resources’ are plundered unsustainably for corporate profit and for a better quality of life for us in an economic system which geared around profitable activity instead of sustainability and wellbeing. It is also a problem with our politics, our law and our culture. We prioritise freedom and an individualistic model of wellbeing based on material wealth instead of sustainability, care and harmony. Our legal system facilitates and empowers this, curating the domination of Nature, a political arena in which Nature has no voice, and a culture in which Nature is given little value.
The Interconnected Law approach recognises that humans are interconnected with Nature: the planet, ecosystems, animal life, planetary systems and more are all necessary in order for us to be able to live, whether that is mere survival or flourishing, but human survival is at stake. They are also beautiful and wonderful and of their own moral worth, and should be recognised as valuable even if we did not need them to survive.
Interconnected Law and Earth Jurisprudence
The Interconnected Law project is heavily influenced by and built upon Earth Jurisprudence. Reading Cormac Cullinan’sWild Law, shortly after finishing my undergraduate law degree, was the beginning of my radical thinking about how legal systems should be. Earth Jurisprudence looks at the relationship between humans and the rest of Nature, with great and radical ideas about how our legal and governance systems must change. The Interconnected Law approach expand on Earth Jurisprudence ideas to also look at the inter-human relationships, based on the core idea of interconnection, and incorporates other related ideas (read more here about the other foundations of Interconnected Law).
Wild Law describes ecological destruction, the best-known aspect of which is climate change, as part of a deeper problem: the ‘perceived separation between nature and human beings is a fundamental cause of the current environmental crisis‘.5 It points out that our existing legal approaches have not only failed to prevent seriously harmful ecological destruction, but actually facilitate it, and that our legal systems, as part of our governance systems more broadly, need a radical overhaul. Wild Law’s positive vision sees humans as ‘part of a broader earth community’ and aims towards a harmonious relationship between humans, the rest of nature, and each other.6
The idea is not that law alone can save us, but that legal change is a necessary part of the broader change we need, as part of political change, economic change and social change.
(A note on the language: Earth Jurisprudence and Wild Law are often used interchangeably, but sometimes Earth Jurisprudence is understood to be slightly more about the overall concept and Wild Law as being more about the legal system or laws. In this article, Interconnected Law and Earth Jurisprudence will also be used fairly interchangeably, as the Interconnected Law idea has grown out of Earth Jurisprudence idea but with little change in the underlying ideas.)
An Ecocentric Approach
Ecocentrism means taking a nature-centred or holistic approach in which Nature is valued intrinsically and living beings, such as humans, are seen as part of this community.7 Earth Jurisprudence and Interconnected Law are ecocentric, which puts them in stark contrast to our existing legal systems, fundamental legal concepts, and dominant culture, which are all anthropocentric, or human-focused.8 Despite environmental law being about the environment, it is still very much anthropocentric: the idea of ‘the environment’ itself defines Nature by being around as. Environmental law is about how we manage our relationship with ‘our environment’, usually based on its instrumental values to humans, and nested within legal and political systems in which humans dominate Nature.9
Cullinan describes anthropocentrism as part of the problem: ‘one of the primary causes of environmental destruction is the fact that our governance systems are designed to perpetuate human domination of Nature, instead of fostering mutually beneficial relationships between humans and the other members of the Earth community.‘10 Although anthropocentrism has been ‘thoroughly discredited by modern science’,11 our governance systems have not yet shifted.
We should also be clear that these are western ideas, colonial and patriarchal in their essence, and that many peoples, especially indigenous peoples, do live in an ecocentric way.
The Interconnected Law approach is grounded in recognising the interconnected ecological reality in which we live and seeking to ‘to secure the safety and future flourishing’ of the whole Earth community.12 Earth Jurisprudence grounds our legal systems in the idea of whole Earth Community and shifts from human-centred rights to looking at relationships and responsibilities instead.
Rights of Nature
One of the core ideas is the idea of ‘Rights of Nature’ (or sometimes ‘Rights for Nature’). If Nature has intrinsic value, then in a rights-based worldview it should also follow that Nature has rights in a moral sense. The core of these rights could be conceptualised as: the right to be, the right to inhabit its ecosystem and the planet, and the right to fulfil its role in the earth community.13 Following on from this moral right, it is argued that there should be legal rights for Nature too. Other, more specific rights would be derived from this framework, and would be different for different species or ecosystems, which includes for humans. The Universal Declaration of Rights of Mother Earth sets out a longer set of thirteen or so rights which builds on these foundational three rights.14
Currently, our legal systems only give rights to humans, and human-based legal entities such as corporations and trusts, as if we are the only things that matter. Whether this is our property law, which posits humans as owners and parts of Nature as objects to be owned, or fundamental constitutional and rights, the only legal subjects are humans and human things.
This is clearly unjust, giving no recognition to the value of Nature and rights that it has, or should have. It leaves considerations of Nature as secondary, an afterthought, something that people can respect and care for if they wish, but which can by default be trampled over and ignored. Corporate social responsibility, for example, relegates any idea of public good to a vague ‘responsibility’ which comes far below core purpose of a corporation to generate profit, instead of having respect for Nature (and for human rights) as boundaries which business activity must stay within.
Nature should therefore have legal rights and the ability to play an equal role in our legal system so that it can protect itself. Whereas environmental law usually protects the environment indirectly, by limiting human activity, rights for Nature would allow Nature to defend itself legally, in the same way that humans are.
Christopher Stone describes what this legal agency must include: ‘first, that the thing can institute legal actions at its behest; second, that in determining the granting of legal relief, the court must take injury to it into account; and, third, that relief must run to the benefit of it.’15 [emphasis original] This distinguishes from a human bringing a legal action which involves a thing and the thing acting ‘itself’. More about this will be returned to below, but aspects of Nature will, of course, have to be represented by humans.
Rights of Nature is not just an abstract idea, but is being implemented around the world. Ecuador and Bolivia have both given Nature rights, courts in Colombia and India have recognised rights for particular ecosystems, in New Zealand a particular river system was given legal personhood, and in the USA, CELDF have been working on rights of Nature at local levels.
What would have rights?
Earth Jurisprudence posits a ‘holonic’ approach, in which things are recognised as both a whole and a part. Individual animals are part of collectives, such as herds, packs, colonies and flocks. Collectives of animals are also parts of ecosystems, with all sorts of animals, plants and other organisms interacting with each other around particular places and habitats. Smaller-scale ecosystems are joined up in a dense and complex web of life which goes all around the world, of which migratory birds are just one example. There are also cycles and systems, such as the water cycle, carbon cycle or nitrogen cycle, which are part of how all living things interact with each other. These can also be seen at different levels of scale, such as nutrients moving in a particular ecosystem or at the level of planetary system.
(This same relational or systemic approach is also a good way to understand humans: individuals are a whole human, but also have relationships, partnerships and families, an organisations, neighbourhoods, communities and societies.)
Given this interconnected web of life, rights would have to exist at all levels. Individual animals would have rights, but probably more importantly would be collective animal rights, the rights of ecosystems, and the rights of planetary systems. This would also be a significant shift away from just individual rights to have collective rights at different social levels.
An individual animal or plant might have rights to not be harmed – which could be understood as the basis for protection from animal cruelty – and also to the necessary shelter or care that it needs to survive. Our compassion for animals already goes some way towards this, with pets, ‘rescue’ animals being rehomed, animal charities which look after animals and conservationists who try to save species at risk of extinction. These relationships of care would just be legally instituted as a way to enhance and safeguard animal protection.
The rights of a collective of animals or an ecosystem could include legal protections against being destroyed or damaged by people who are destroying it, whether that’s pollution into a river from upstream, too many trees felled, litter being left or a developer wanting to raze it to build housing.
At a global system scale, reducing carbon emissions could be seen as the right of the planet to not have its atmosphere dangerously imbalanced, and instead of just having targets set by humans, could enforce these rights against those who infringe it, such as against nation-states, corporations and individual actors.
This is just an initial sketch and vision of what Rights of Nature would involve, as a full elaboration would be a huge undertaking.
Relationships and Responsibilities
Giving Nature rights is only partway there. One further aspect would be the way that Nature having rights, instead of just humans having rights, means that law would be much more about the relationships between rights instead of rights themselves.
(It is also only partway there because we should not only change our legal systems with regards to Nature, hence the project being Interconnected Law instead of just Earth Jurisprudence, and more is written about this relational approach to law in this article, and because there would need to be broader political change such that Nature has the power it needs, instead of just a formal legal change in which Nature can have rights which are overridden or ignored.)
Human rights – which I mean broadly as all human rights instead of just what we call ‘human rights’ as from the Universal Declaration of Human Rights – are typically rights which grant certain outcomes. Constitutional rights claim against the state to demand something, such as housing, or to protect people from state action, such as unjust arrest. Contractual rights claim against other parties in the contract to have them perform the contract. Property rights are over the object and over other people who want to engage with the object or interfere with the holder of the property right. Liberty ‘rights’, such as the default right to do whatever you want (unless it is prohibited), which includes the general ‘right’ to conduct business, protect one’s ability to do certain things.
Giving Nature rights would transform our legal systems because Rights of Nature would frequently conflict with existing human rights, in all sorts of ways. Nature could protect itself from various human (or corporate) activities, which brings it into direct conflict with existing human rights. This would happen on the broad level, against our ideas of economic growth or development, and also at the micro level, with specific claims against communities and individuals. As well as protecting itself, Nature could also demand certain things from humans, such as restoration, care and nurture.
This means that our legal system will be much more about the relationships between rights holders, instead of about rights. Or, rather, because our legal systems are inherently about relationships already, it shifts us from relationships between rights-holders and those subject to the rights-claims to relationships between rights-holders with competing rights-claims.
Just and harmonious relationships means that it is multi-sided, instead of one-sided as with most right claims where one party is claiming or demanding something from the other. The legal situation moves from asking trying to resolve a rights-claim to asking about what is right to all the parties involved, what is a just resolution to the ‘conflict’ and a just relationship. In this, the hope is that law becomes about mediating and fostering just, harmonious relationships, instead of just doing right to an individual.
Cullinan describes that ‘rights are expressed in relationships with other members’.16 These relationships, linking rights and responsibilities, must embody ‘the central importance of balance’ and ‘the principle of reciprocity’: the ‘greater the rights or privileges, the greater the responsibilities that ought do with them’.17 A lack of balance – as we currently have between humanity and nature and within societies – is harmful and dangerous, as can be seen both ecologically and in economic inequality within human societies.
Of course, a change in the form of our legal system would not of itself be enough to address the issue. Even if Nature has rights and our legal system looks at relationships, our cultural norms and political power must be rebalanced for the desired outcome to be effected.
Law’s Goal
Earth Jurisprudence casts the purpose, or one of the purposes, of (Wild) law as being securing the safety and future flourishing of the whole Earth community.18 The legal system must recognise and nurture community and interconnection and act based on notions of restorative justice,19 with principles of sustainability and balance as fundamental principles.
Sustainability is a relational concept which law must work towards. Even if we see Nature only in terms of a resource for humans, we must balance our taking with replenishing, otherwise we will run out of the resource and our survival may be threatened.
More about Law’s Goal from the Interconnected Law perspective here.
Earth Democracy20
The idea of a shift in our whole political and governance systems, instead of just legal system, is encapsulated in the idea of Earth Democracy. Earth Democracy means ‘systems of Earth governance’ which are ‘of the people and by the people, but for the whole Earth community’ [emphasis original].21 It recognises the interconnection, that injustice against humans and against nature are interwoven. Earth Democracy goes further than current models of democracy in two ways: by requiring democracy at all levels and by including non-human interests.
Earth Democracy rejects top-down representative democracy and instead requires that decisions are made ‘at the lowest appropriate level of governance’.22 This is similar to the EU principle of subsidiarity,23 as well as anarchist ideas that power should be distributed downwards, or away from the centre, as much as possible.
Nature’s interests must also be represented as part of our democracy and governance, to include all members of the Earth community. Of course non-human elements cannot speak for themselves, but their interests should still be represented, not just taken into account but given equal power. This will require new institutional thinking, but we can already see examples this in legal systems with trusteeship or guardianship approaches,24 and NGOs representing the interests of ecosystems, species or nature.
Earth Democracy also includes Community Environmental Governance, the idea that environmental governance should be done at the most local level in the relationship between communities and ecosystems. Local communities are best placed to work with ecosystems, by focusing on local knowledge and the relationship with place that people have.25
Earth Democracy is a substantive approach to democracy, going beyond the procedure of decision-making. It includes values: the intrinsic worth of both humans and whole Earth Community; integrity, sustainability and harmony; and intergenerational equity, including the interests of future generations.26 These values must be institutionalised in political governance and law as fundamental constitutional principles.27
Who will speak for the trees?
You may well be wondering how Nature would participate in our legal systems: trees cannot voice their wants or advise lawyers, and an orangutan cannot stand in court or parliament and advocate its survival.
Nature’s participation in our legal, governance and political systems would, by necessity, have to be done by human voices. But the key underlying idea is that humans would be advocating for the best interest of Nature, not their own interest or view. While representing Nature would be new, the underlying idea is not: humans already speak for those who cannot speak for themselves. Children and people with insufficient mental capacity, for example, are represented by others. We also already have legal entities such as corporations, charities, non-governmental organisations and trusts, where humans act on behalf of the entity instead of for their own benefit, and of course democratic or state institutions who act for some version of public interest.
It is already normal for conservationists, charities and other experts already speak politically for animals, ecosystems and general causes. The legal system would give power to the rights Nature would have and facilitate this discussion. Even if it may not be clear what is in the best interest of a particular part of Nature, because discerning this can be difficult and our scientific understanding may not be well enough developed, that the discussion would be focused on its best interest is already a significant shift.
1 For an overview see Cullinan, Wild Law 36-43.
2 Johan Rockström et al, ‘A Safe Operating Space for Humanity’ (2009) Nature 472-475.
3 Millennium Ecosystem Assessment (Program) Ecosystems and human well-being (2005, Island Press).
4 Global Biodiversity Outlook 5
5 From the Declaration by the 2009 Wild Law Conference (Australia) reproduced in Peter Burdon, ‘Wild Law: The Philosophy of Earth Jurisprudence’ (2010) AltLJ 62.
6 ibid.
7 The Hon Justice Brian Preston, ‘Internalizing ecocentrism in environmental law’ in Wild Law in Practice (edited by Michelle Maloney and Peter Burdon) 75.
8 Peter Burdon, ‘The Great Jurisprudence’ in Exploring Wild Law (edited by Peter Burdon) 61.
9 UKELA and The Gaia Foundation, Wild Law: Is there any evidence of earth jurisprudence in existing law and practice? 49 (viewable here); Klaus Bosselmann, ‘From Reductionist Environmental Law to Sustainability Law’ in Exploring Wild Law 204. See also Douglas Fisher, ‘Jurisprudential Challenges to the Protection of the Natural Environment’ in Wild Law in Practice 95, for an assessment of international legal instruments for anthropocentrism.
10 Cormac Cullinan, ‘A History of Wild Law’ in Exploring Wild Law 13.
11 Burdon, ‘The Great Jurisprudence’ (n 8) 60. For more detail, see Jamie Murray, ‘Earth Jurisprudence, Wild Law and Emergent Law: The Emerging Field of Ecology and Law–Part 1’ (2014) Liverpool Law Review 215, 221.
12 Wording taken from Burdon, ‘The Great Jurisprudence’ (n 8) 70.
13 Cullinan, ‘A History of Wild Law’ in Exploring Wild Law 13.
14 Article 2, Universal Declaration of Rights of Mother Earth (UDRME), declared by the World People’s Conference on Climate Change and the Rights of Mother Earth (April 2010, Cochabamba, Bolivia).
15 Christopher Stone, ‘Should Trees Have Standing’ 1972 S California Law Review 450, 458.
16 Cullinan, Wild Law 108.
17 Cullinan, Wild Law 115-16.
18 Burdon, ‘The Great Jurisprudence’ (n 8) 70.
19 Mason, ‘One in All’ in Exploring Wild Law 43.
20 The Earth Jurisprudence approach to Earth Democracy is that put forward by Vandana Shiva in Earth Democracy: Justice, Sustainability and Peace (2005, South End Press).
21 Judith Koons, ‘Key Principles to Transform Law for the Health of the Plane’ in Exploring Wild Law 53.
22 Koons, ‘Key Principles’ (n 21) 53.
24 Stone, ‘Trees’ (n 15), specific page ref lost.
25 Mason, ‘One in All’ (n 19), 43-44.
26 Koons, ‘Key Principles’ (n 21) 54.
27 Bosselmann, ‘Sustainability Law’ in Exploring Wild Law 204.