Interconnected Law is came out of three sets of existing scholarship: Earth Jurisprudence, relational approaches to law, and systems theory. Each of these both critiques existing legal systems (in the context of broader political, economic and social systems) and proposes how law should be instead. It seemed to me that these should be drawn together into an integrated and holistic legal theory.
Our legal systems conceive of society as a collection of atomistic individuals, with liberal approaches to law influenced by the enlightenment understanding of the ‘world as a machine’.1 Yet this scientific approach has has now been displaced by new ‘holistic’ or ‘systemic’ approaches in many scientific disciplines.2 For example, ecosystems are understood in the interplay between their constituent organisms as far more than just a collection of individual fauna and flora, and physics recognises the interconnection of planetary bodies and subatomic particles. A similar shift is needed with our understanding of law.
The Interconnected Law project draws these ideas is doing is drawing these together. I think that the commonality between these approaches is Interconnection, and that this is the core of the critique of existing law and the vision of how things should be.
It is also based on visions of care and nurturance culture. The liberal-patriarchial idea of man as an island is deeply inadequate, both in our society and as experienced in my personal life. Instead, relationships which sustain and support each other, adapted to everyone’s needs and rejecting oppressive and discriminatory social structures, are what are necessary to both address injustices and for people to flourish in.
The Change We Need
With law, the change would happen in two interrelated ways. On a formal level, it is argued that law would be better as a tool if it recognises the interconnected and relational reality of human life. On a normative level, it can also be argued that part of the role of law in society is to work strengthen the relationships that make up our society, and so ultimately provide conditions in which individuals can be free and have autonomy and agency. An interconnected approach to law therefore has implications from the practicalities of how legal systems function through to how we conceive of freedom, justice, security, equality, dignity and other fundamental values. This recognition of human interconnection, instead of a society comprised of free-standing individuals, necessitates a gestalt-like shift in our approach to law.3
We cannot simply make slight changes to our existing legal systems, just as we cannot simply make slight changes to our current way of life. Our law needs a radical overhaul to focus on the relationships which make human life possible, with law helping to foster these such that we can live in harmony with each other and the rest of Nature.
A Relational Approach to Law
The key work I came across is Jennifer Nedelsky’s Law’s Relations. In her work, she challenges assumptions made in the dominant liberal approach to law, which sees humans as discrete, free-standing individuals, and argues that instead, humans exist in a network of relationships, including social, economic and political relations.
In this approach we can see that humans need social relationships which empower us, as well as economic relations which provide freedom, political empowerment and an environment which sustains life. Her work comes out of feminist legal scholarship, recognising the patriarchal nature of liberal conceptions of free-standing individuals with autonomy that needs protecting from outside interference and the model of ownership as domination.
As Nedelsky shows, many liberal values – such as freedom, autonomy and security – are better understood in this relational context. Individual freedom requires ‘relations of freedom’,1 and individual autonomy recognises that individual capacity and ability to act is based on relations which do not constrain people but which empower and foster autonomy,2 including the relationship with the state.
Nedelsky advocates both for ‘a shift in emphasis that moves relationship from the periphery to the centre of legal and political thought and practice’, but also ‘a gestalt-like change’ in understanding the world, and a paradigm shift in our legal political thought which follows this. She also recognises the parallels with her work and Earth Jurisprudence, though from an entirely different starting point.
1 Nedelsky, Law’s Relations, 33.
2 ibid 118.
Earth Jurisprudence
The foundational work was Cormac Cullinan’s book Wild Law: A Manifesto for Earth Justice, first published in 2002, though an earlier root can be seen in Christopher Stone’s 1972 article ‘Should Trees have Standing?’. There has also been a further book and two edited collections published earlier this decade, as Earth Jurisprudence was taken forward by Peter Burdon. As a note on the language, though they are sometimes used interchangeably, ‘Wild Law’ is more about the law itself and ‘Earth Jurisprudence’ is the broader approach.
In Wild Law, Cullinan recognises the global ecological destruction which has been caused by humans and diagnoses this as due to the breakdown in the relationship between humans and the rest of Nature. He argues that our legal systems are part of this: humans are the only legal subjects, and Nature reduced to objects which can be dominated and treated as we wish. Cullinan argues that we must respond by radically changing our legal systems, while being clear that this must come as part of a broader shift in our governance, including politics and economics.
Earth Jurisprudence advocates for Nature to have legal rights. Beyond simply expanding the legal franchise, this requires a shift to a ‘Whole Earth Community’ approach which involves Nature in legal systems and recognises the communion of humans and the rest of Nature. As with Nedelsky’s work, Earth Jurisprudence therefore involves a shift to a more relational approach, with Cullinan talking of the ‘central importance of balance’ and ‘the principle of reciprocity’. Earth Jurisprudence has been explored most significantly with regards to ownership and land law, such as by Peter Burdon,3 as property law is the area of law which currently structures the relationship between humans and the rest of Nature.
Earth Jurisprudence scholarship also includes ideas about the nature and role of law. By situating humans as part of the Earth Community, and recognising that our planet sustains our life, law is conceived of as having the purpose of working to rebalance, rebuild and strengthen the relationship which humans have with the rest of Nature. This should happen in a ‘holonic’ way, at all levels: local people with their local environments, humanity as a whole with the global ecological systems such as the climate, and at every level in between.
These ideas have had an impact, with the ‘rights of nature’ movement as well as the UN’s Harmony with Nature programme. Legal personality has been given to important Maori natural places in New Zealand, and the Indian Supreme Court has granted legal personality to the Ganges river. In Ecuador, rights of Nature are part of the constitution, and in Bolivia the Law of the Rights of Mother Earth (2010) was passed, though little has been written in English about what effect these have had in practice and to the legal system.
There are also parallels with ‘The Ecology Of Law‘ (Capra and Mettei), which added to these ideas in the context of systems thinking, which is discussed more below.
The Systems View Paradigm Shift
There is also work on systemic or holistic worldviews, including how this applies to law, such as ‘The Systems View of Life’ (Capra and Luisi) and ‘The Ecology of Law‘ (Capra and Mattei).
In their book The Systems View of Life, Capra and Luisi present a unifying systems approach which draws together the ‘holistic’ worldview which has developed in many disciplines, and replaced the ‘rationalist’ paradigm which has dominated modern understanding since the enlightenment. As they describe: ‘The worldview and value system that lie at the basis of the modern industrial age were formulated in their essential outlines in the sixteenth and seventeenth centuries’.1
The ‘rationalistic’ or ‘mechanistic’ paradigm understands the material world in terms of the arrangement and movement of its parts, seeing the world as a machine.2 For example, physics looked at planets, molecules and particles, and biology looked at animals, plants, organs and cells. Modern social sciences, including law, were heavily influenced by this approach, such as John Locke’s atomistic conception of society which extrapolated from free-standing individuals to the conceptualisation of the state.3
Capra and Luisi trace the way that the rationalistic paradigm has been recognised as no longer fit for purpose in many scientific disciplines, and supplanted by holistic or systemic approaches.
In science, Newtonian physics has been replaced with quantum physics; the human body is now understood not as discrete levels of muscles, organs and cells, but an entire interconnected body; and animals live in ecosystems with interrelations and feedback loops.
As Capra and Luisi describe, ‘To understand things systemically means to put them into a context, to establish the nature of their relationships.’4 This ‘systemic’ or ‘holistic’ paradigm has begun to emerge in legal scholarship, but is still in its infancy.
Interconnected Law is inspired by this systemic or holistic approach, as well as trying to be part of the paradigm shift that they show in other disciplines.
1 Capra and Luisi, The Systems View of Life, 19.
2 ibid 35
3 ibid 46.
4 ibid 64.
Note: there is also a book written by Capra and Mattei which applies this systems view to law. This is called The Ecology of Law: Toward a Legal System in Tune with Nature and Community, and I hope to read it fully soon.
The Interconnected Law Approach
The different areas of legal scholarship described above – systems theory, relational approaches to law and earth jurisprudence – all share an approach to law which treats humans as interconnected with each other and our environment. These seem like the beginnings of what I hope will become a paradigm shift in our approach to law, both understanding of it in our legal systems.
The Interconnected Law project builds on all of these approaches to try and effect this paradigm shift. There is nothing in each approach that is wrong – instead, the view is that these need combining into an overall theory and conceptual approach. Earth Jurisprudence is focussed on the relationships between humans and the rest of Nature, whereas Nedelsky’s relational approach seems to be some way towards the inter-human relationships and challenging the dominant liberal conception of law. The Systems View approach is about the holistic systems view more broadly, with the book The Ecology of Law applying this to legal systems.
The Interconnected approach recognises the commonality of these approaches – interconnection. This is meant as a description of humans and the world we live in, a critique of existing law and legal theory, and the normative foundation for the vision of what our society and law should be about.