Delivered in Anglo-American University, Prague 19/11/15
It is sometimes observed in jurisprudence how Hitler came to power by legal means and continued to govern in accordance with the German constitution. Of course an American might argue that this could never happen there because of the separation of powers between the judiciary, executive and legislature in their constitution. But slavery was allowed to cohabit with the original constitution until the civil war and some describe what happened to native-Americans in the nineteenth century as genocide.
But few would argue that what Hitler did was justified or even, in a sense, legal. That’s because most of us subscribe to a view that human beings have certain rights that are inalienable (cannot be given away) and imprescriptible (do not lapse with time) antecedent and superior to positive law. These include inter alia the right to life, property and one’s good name. Of course most of these rights are limited (although I would argue that a person’s right not to be tortured is absolute). Courts therefore often have to weigh up competing rights. Thus we are allowed to defend ourselves proportionality if someone attacks us and the police are allowed to enter a property if they believe someone inside has committed a crime.
We might conveniently and perhaps confusingly consider such rights to be a part of natural law. But the scope of natural law is limited to human actors and I will argue that we must broaden it to encompass all of Earth and the beings that exist here. I say this not merely because I think that fairness demands that we extend compassion to all life on the planet but also because without radically re-appraisal of our relationship with nature we are endangering our continued existence on the planet.
I believe that what has come to be known as Wild Law or Earth Jurisprudence is not just an intellectual curiosity, a neat concept that gives us a warm glow of satisfaction, but really I predict that this is could be a huge area of work for the lawyers in the future as we consider the competing needs and interests of all the living world and attempt to bring a harmony that will be to the advantage of all including the human species.
Moreover, I argue that the propositions I am making this evening are nothing new and would be recognised by most faith systems especially those closest to nature in the small number of hunter-gatherer communities still existing. But what I am saying is also firmly rooted in science and in former NASA scientist James Lovelock’s Gaia hypothesis. This is the idea is that the earth’s organism interact with inorganic surroundings to form a self-regulating, complex system that maintains life.
Thus for example: ‘around 21 per cent of the atmosphere is made up of oxygen, which is highly reactive, while methane is found at a fairly constant level of 1.7 parts per million. In sunlight, oxygen and methane react to produce carbon dioxide and water. Maintaining methane at this level requires living organisms to produce about 500 million tons of methane a year. If life on Earth were to cease, all its elements would continue to react with one another until no more reactions were possible and the planet would become a hot, inhospitable place without oxygen and water.[Cullinan, p.80]’.
What’s encouraging about the Gaia hypothesis is the assumption that as the Earth is a self-regulating system it will redress any imbalance: this suggests that humans as a part of the earth community will mend their ways and find a more symbiotic relationship with the rest of the life on planet Earth. But this requires a change of heart on the part of many of us leading to radical changes to our behaviour. One author points out: ‘Many of our so-called “material comforts” are not only in excess of, but are probably in opposition to, basic biological need.’ Most of us could easily consume less than we do now, and be healthier for it. Indeed, the global obesity pandemic shows we are consuming too many calories or are relying insufficiently on our own energy for transport and in the manufacture of products that have built in obsolescence.
The laws that govern most of our societies are really a product of the scientific revolution of the seventeenth century and the so-called Enlightenment. In particular the ideas of Rene Descartes have had a powerful effect. ‘Descartes set out to entirely reconstruct philosophy on the basis of mathematical reasoning’. He distinguished between a rational mind and an animal, wild body and understood the physical world as a complex machine ‘that could be understood by reductionist analysis (i.e. by dissecting it and looking at each of the parts to understand how it works)’. In Descartes schema, which was formulated at a time when Europeans were subduing and colonising the rest of the world, only man had the power of reason and as such this placed him above all other animals an idea that was inherited from earlier Christian philosophers such as Thomas Aquinas. The colonisation of the world beyond Europe also brought about the subjugation of nature, as European technologies have allowed ever wider encroachment on regions which often displayed an approximate balance between human beings and the rest of their ecology.
The superiority of men over nature is affirmed in the American Declaration of Independence: ‘ When in the course of human Events, it becomes necessary for one People to dissolve the Political Bonds which have connected them with another, and to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them, a decent Respect to the Opinions of Mankind require that they should declare the causes which impel them to the Separation. We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness.
Prior to European subjugation many human groups saw themselves as being on the same level as other animals. Shamans would communicate with animal spirits requesting that they offer themselves as prey for hunters. This gratitude towards nature is also evident in other religions including Islam where under halal rules thanks is given to the animal for the food they offer to the human community. Even in Christianity until recently meat was off the menu for much of the year. It has been argued that prohibitions during the period of Lent reflect the need to restrain consumption during the months of the year when little meat was available. Today where religions have fallen into decline we have few limitations on our consumption.
Until very recently (and only in Europe and South America) do we find that rights are conferred on anything other than human beings. There is simply no recognition of the limits of natural profusion or the extent to which human actions could be destabilising Earth systems and could have terrible repercussions for ourselves and other creatures.
There is no doubt that human beings have displayed extraordinary resourcefulness and have made up for a lack of physical prowess since they left Africa less than 100,000 years ago. This has allowed them to survive in all parts of the planet, discovering every manner of food source and even overwhelming far larger animals. We may call this intelligence a capacity for reason but if it leads us to consume so much that we endanger most other species and our very survival then that capacity for reason is in fact stupid and self-destructive. In the place of reason what we really need is wisdom.
Since the departure of human beings from Africa where we evolved various megafauna including the woolly mammoth have been hunted to extinction which may have had an effect on the earth’s climate. But the real troubles began when certain high-performing seeds and docile animals were domesticated. This allowed settled humans to create food surpluses for cities that reached over one million people more than two thousand years ago.
This expansion of humanity was amplified by the discovery of fossil fuels starting primarily with coal which rapidly accelerated urbanisation, made travel far easier and led to the industrial revolution and the emergence of consumer societies. All of this was underpinned by the rapid expansion of agriculture which entailed the deforestation of huge swathes of the world (including much of Europe) mainly to make way for our animals to graze. This process was accelerated by the crucial invention of artificial fertilizer (the Haber-Bosch process) in the 1910 which led to the Green Revolution after World War II and an extraordinary expansion in food supply.
It is amazing to consider that in 1901 the world’s population stood at about 1.5 billion with less than 20% living in cities while today we have 7 billion with over 50% living in cities. And it is not just the number of humans that have increased: our lifestyle expectations have altered considerably. Many in the West (and the East increasingly), expect to drive a car. We aspire to travel by aeroplane to far flung places and most people want to eat meat every day whereas before it was a rare luxury and often restrained by religious obligations that have gone out of fashion.
The loss of other species due to this expansion has been staggering. Will Tuttle informs us that 10,000 years ago at the dawn of agriculture, free living animals made up 99% of the biomass and human beings made up only 1%. Today humans and the animals that we own make up 98% of the biomass. He says: We’ve basically stolen the world, the earth, from free-living animals to use for ourselves. It is a staggering statistic that over 50 billion animals are killed to feed humans each year. Moreover, since 1970 half of all mammal species have been made extinct mostly because of human actions.
But all our travel, deforestation, domesticated animals (particularly ruminant cattle and sheep) are adding up to one terrifying outcome which is runaway climate change which could create billions of refugees from many parts of the developing world and is already causing great turbulence in our weather patterns. We have seen droughts giving rise to crop failures on a more regular basis this century and this is set to increase as the century goes by. 97% of climate scientists believe that climate change is man-made so denial of it is increasingly absurd.
Scientific questions are rarely addressed in legal settings because as I have noted we are still enduring the intellectual legacy of Descartes where most of us reside comfortably in our respective specialities. But the challenges to the world we are living in requires holistic thinking so that sciences draw on humanities and the humanities draw on science. We need to start thinking of the big picture and connectedness and that is what Wild Law and Earth Jurisprudence are all about.
Moreover, physics the most important branch of science is teaching us to look at the world in a very different way from Descartes’s. Werner Heisenberg’s ‘uncertainty principle’ states that the mass and velocity of an electron could not be determined simultaneously.’ Physics is essentially accepting mystery as implicit and that nature does not act in the mechanistic way that Descartes proposed. Quantum physics exploded the view that the universe is a vast mechanism constructed of many tiny ‘building blocks’. This gives further credence to Lovelock’s Gaia theory. As ‘the nature and behaviour of part is determined by the whole rather than the other way round. This point of view is fundamental to what today is often referred to as ‘systems thinking’. If we accept mystery is implicit then simply because we don’t fully understand how observed processes occur should not deter us from drawing lessons from them. The earth is not a machine which we can dismantle into parts but a highly complex system that may always defy human understanding.
So what is this Wild Law that I have been skirting around the edges of? In my view it is an extension of natural law, involving a more rounded picture of the world that encompasses the whole planet. As Cormac Cullinan observes: ‘Probably all human communities once regulated themselves with the purpose of ensuring that their members lived in accordance with the requirements of the wider ecological community.
We have become so powerful that geologists now refer to the Anthropocene the era of human geological time that began around 1945. With this unprecedented power comes great duties and to simply ignore the plight of the rest of the planet is unconscionable. We cannot insulate ourselves from other inhabitants of the planet. We need the diversity of nature for clean water, air and healthy food. A good example is wild bees whose populations across Europe are under pressure, apparently due to the use of certain pesticides. These bees are vital for the pollination of many our food crops. Under our current laws nobody can make a claim on behalf of the bees, though they are crucial to our agriculture. We have to realise that we are part of nature not opposed to it or in competition with it.
According to Thomas Berry, ‘The Universe is not a collection of objects but a communion of subjects’ and every member of the Earth Community has three inherent rights: the right to be, to habitat, and to fulfil its role in the ever-renewing processes of the Earth community.’ That is not to say that human beings should go around policing nature or stopping foxes from hunting rabbits. There is a balance to be struck and most natural processes will continue to go on without us. We are talking about light touch regulation and laissez faire as far as possible but when our own actions start to seriously interfere with the natural world we need to be able to enforce the rights of nature.
The important thing is for us to modify our own behaviour so that we desist from encroaching further on the natural world. One has only to look to look to see the forest fires in Indonesia to realise that there is a crisis of our own making that looms as a threat far greater than terrorism. The destruction of mangrove forests in that area to make way for agriculture is causing an ecological catastrophe, but our media sources prefer to concentrate our minds on far lesser dangers. It has been estimated that each year 2 million people die due to air pollution. Just this week I met a Chinese girl who showed me pictures of Beijing which is now enclosed in a smog that requires people to wear air masks to filter the air.
Of course you might wonder how a change in our ideas about the ambit of the law will make the slightest difference to the world. But there is no doubt that laws influence our behaviour and generate moral outlooks. Just look at the attitude of younger generations to drink-driving compared to their parents, or the positive attitude many people now have to recycling. And although I have been critical of the US constitution there is no doubt that it contained advanced ideas on human rights that are firmly installed in the global consciousness. Other instruments like the UN Declaration of Universal Human Rights have had a similar effect. These legal instruments are still very important they just need renewal.
In the Descent of Man Charles Darwin argues that the history of man’s moral development has been a continual extension of the objects of his “social instincts” and “sympathies”: Originally each man had regard only for himself and those of a very narrow circle about him; later he came to regard more and more “not only, the welfare, but the happiness of all his fellow men”; then “his sympathies” became more tender and widely diffused, extending to men of all races, to the imbecile, maimed and other useless members of society, and finally to the lower animals”. It is argued that the history of the law suggests a parallel development. Thus for example a Roman father held power of life or death over his family. But we may question Darwin’s description of “lower animals”; I would argue that there is nothing inherently superior about human beings. We have remarkable capabilities but this certainly does not make us superior to other creatures, especially when you consider some of the things that human beings have done to each through history, and even today we observe terrible things around the world. All creatures have remarkable features or they would not have found their ecological niche.
Let us pause for a moment and consider how we go about creating the new world order that has been proposed. How do we re-frame the legal instruments in order to protect nature? No doubt this will be a difficult process and unfortunately it is impossible for us to understand the earth’s great complexity. We will of course look to science for guidance. Conservationists for example can tell us what will happen if a certain river is polluted and climate scientists can tell us what the effect of a car or a cow is but really what we need is a change of heart and for us to start dignifying other creatures with equality of consideration.
All creatures have different needs and we should acknowledge that humans have needs too and can continue to consume in line with them but in such a way where harm is minimised. This change of heart that our legal system can inculcate must influence those at the top in corporations and governments but it can begin at the bottom and it is worth living by Gandhi’s idea ‘to be the change you want to see in the world’. Any change begins at the level of the individual level. We should try to avoid despondency and never give up hope. Humanity has the capacity to change and can do so very quickly if we pull together. In our technological age we have unique ways of sharing information so that processes that would have taken decades in the past can now happen almost overnight.
One moral question that Wild Law poses is whether human beings have the right to kill other animals for food. I was particularly struck by a description in Laurens van der Post’s autobiography Yet Being Someone Other on this question. As a young journalist van der Post observed a number of expeditions on a whaling vessel in the south Atlantic. He records:
‘I could not deny the excitement and acceleration into a consummation of archaic joy which the process of stalking and hunting, even at sea, had invoked in me, although I was at present now only as an observer. On the other hand, hard on these emotions came an equal and opposite revulsion which nearly overwhelmed me when the hunt, as now, was successful and one was faced with the acceptance of the fact that one had aided and abetted in an act of murder of such a unique manifestation of creation. The only dispensation of the paradox ever granted to me in the past, unaware as I had been of the immensity of it until revealed to me in this moment at sea, was that in hunting out of necessity, all revulsions were redeemed by the satisfaction one felt in bringing food home to the hungry. That such satisfaction was not an illusion, nor a form of special pleading in the court of natural conscience, was proved to me by the profound feeling of gratitude one invariably felt for the animal that had died in order for others to live … [but] what could this possibly have to do with the necessities which were essential for the redemption of the act of killing … in this increasingly technological moment of my youth, when control of life was passing more and more from nature to man, and when there were already available all sorts of artificial substitutes for the essential oils which animals like the whale had once been the only source of supply, what, I asked myself bitterly, could justify such killing except the greed of man for money … Worse still, I was certain that our imperviousness to the consternation caused by such killing in the heart of the nature could be the beginning of an enmity between man and the life which had brought him forth that could imperil his future on earth itself.’ He concludes: every one of us – not excluding the disabled, maimed, blind, deaf, dumb and the bearers of unbearable suffering – matters to a Creation that has barely begun
There are situations where human cannot survive without exploiting other animals for food making them in a sense obligate carnivores but living in developed cities where there are ample alternatives it seems that this argument is less compelling. Some argue that eating a small amount of meat does little damage to the environment but can we tolerate the way most animals that we eat are treated in factory farms and feeding lots? It seems to me that any natural law should not exclude such excesses or prohibit such suffering. Moreover, as the Russian writer Leo Tolstoy wrote ‘as long as there are slaughterhouses there will be battlefields.’ It may be that the violence we exert against other animals leads in ways that we cannot grasp to violence in human societies. Moreover extension of compassion to other sentient creatures will extend our compassion to the wider planet as those animals are part of a wider nature. We should appreciate the beauty of a tree, even if there are times when we must chop it down in order to survive.
But of course any lawyer will ask how can all these high-sounding ideas be turned into something tangible in terms of legislation or constitutional expression? In his seminal article on the subject Can Trees Have Standing (written in 1972) Christopher D. Stone explores how wild law might apply. He argues that natural objects could have legal standing by analogy with companies, states, infants, incompetents, municipalities or even universities. Thus a court appoints a trustee when a corporation has become incompetent. He says: ‘On a parity of reasoning, we should have a system in which, when a friend of natural object perceives it to be endangered, he can apply to a court for the creation of a guardianship … The guardian would urge before the court injuries not presently cognizable – the death of eagles and inedible crabs, the suffering of sea lions, the loss from the face of the earth of species of commercially valueless birds, the disappearance of wilderness areas.
He also draws an analogy with the law of patents and copyright: ‘I am proposing that we do the same with eagles and wilderness areas as we do with copyrighted works, patented inventions and privacy: make the violation of rights in them to be a cost by declaring the piracy of them to be the invasion of a property interest.
He even suggests that this could involve modifications to our democratic systems: ‘I am suggesting that there is nothing unthinkable about, and there might on balance even be a prevailing case to be made for an electoral appointment that made some systematic effort to allow for the representative “rights” of non-human life.’ Considering most of our laws are framed in national and regional assemblies this argument could have some merit, although it is hard to imagine how it could actually happen. If it does, it seems very unlikely that the representative for turkeys will be voting for Christmas…
He envisages that a change in our legal culture would have an effect on the wider social norms: ‘such a manner of speaking by courts would contribute to popular notions, and a society that spoke of the “legal rights of the environment” would be inclined to legislate more environment-protecting rules by formal enactment.
He speculates that ‘What is needed is a myth that can fit our growing body of knowledge of geophysics, biology and the cosmos’ and considers ‘that we may come to regard the Earth, as some have suggested, as one organism of which mankind is a functional part’. Another leading author on the subject Cormac Cullinan developed an earth connection when he was on a Buddhist retreat. He records: I suddenly knew with great clarity that I was part of a single whole.’ But it is doubtful whether existing religions offer the guidance required. Even the spiritual beliefs of the Chinese and Indians ‘in the unity between man and nature had no greater effect than the contrary beliefs in Europe in producing a balance between man and his environment.’ Perhaps James Lovelock’s Gaia theory can offer that idea for our time as it is clear that most human beings have a need for some form of spiritual connection but that scientific rigour is also required for us to understand all of the earth systems. Perhaps in the future American money will have written on it: In Gaia we Trust.
Happily there are signs that human beings are coming around to the idea that the natural world has inalienable and inherent rights. Thus in September 2008 Ecuador constitution commits the state and citizens to seeking well-being in a manner that is harmonious with nature and that recognises the rights of nature. It is stated that ‘Nature or Pachamama, where life is reproduced and exists, has the right to exist, persist, and maintain and regenerate its vital cycles, structure, functions and its evolutionary processes.’ A duty is also imposed on all Ecuadorian men and women “to respect the rights of nature, preserve a healthy environment and use natural resources in a rational, viable and sustainable manner.”
This was followed by the declaration on 17 October 2009 by nine countries of the Bolivarian Alliance for the Peoples of Our America supporting the call for the adoption of the Universal Declaration of Mother Earth Rights. It reads
1. In the 21st Century it is impossible to achieve full human rights protection if at the same time we do not recognize and defend the rights of the planet earth and nature. Only by guaranteeing the rights of Mother Earth can we guarantee the protection of human rights. The planet earth can exist without human life, but humans cannot exist without planet earth.
2. Just as World War II caused a serious humanity crisis that in 1948 led to the adoption of the Universal Declaration of Human rights, today we are suffering the enormous consequences of Climate Change making it essential to have a Universal Declaration of Mother Earth Rights.
3. The ecological crisis which global warming is part of, is showing so palpably an essential principle that has been argued for centuries by the native and indigenous peoples all over the world: that human beings are part of an interdependent system of plants, animals, hills, forests, oceans and air that require our respect and care. The system is what we call Mother Earth “Earth does not belong to man, but man to earth.” The Earth is not a group of things that we can appropriate of, but it is a group of natural beings with whom we must learn to live together in harmony and balance respecting their rights.
It is revealing that this statement was framed in one of the poorest parts of the planet where resources are scarcest. It seems that many of those enduring poverty more easily recognise the limitations of nature and it is simply untrue to suggest that environmentalism is not concerned with human welfare. The opposite is actually the case, it’s just that environmentalists takes a longer term view and see humans and nature as one.
We already have enough resources for the whole planet and the technologies required to change the way we consume. Krishnamurti observed: “If all of us said, ‘Look let’s all get together and solve this problem’ they could do it. Science has the means of feeding people. But they won’t because they are conditioned to function so as to destroy the security which we are seeking.” We need to alter that destructive way of thinking and get people to focus on the outcome of their actions. Significant re-distribution of global income among humans is I believe implicit in our acceptance of Wild Law. Lawyers have tended to shy away from pursuing socio-economic rights but what use is one’s good name or property if one is dying of poverty.
The Declaration also states there is no contradiction between human rights and the rights of nature. In fact they are one and the same as one flows from the other. The challenge of global warming in this the Anthropocene should be the moment for humans to act individually and collectively.
At least it would appear that the Catholic Church is moving in the right direction with Pope Francis’s encyclical Laudato Si. The pope draws on the legacy of his namesake St. Francis saying: “Francis helps us to see that an integral ecology calls for openness to categories which transcend the language of mathematics and biology, and take us to the heart of what it is to be human. Just as happens when we fall in love with someone, whenever he would gaze at the sun, the moon or the smallest of animals, he burst into song, drawing all other creatures into his praise. He communed with all creation, even preaching to the flowers, inviting them “to praise the Lord, just as if they were endowed with reason.””
The recollection of these sentiments is encouraging, but the relationship that the encyclical envisions between humans and nature at large remains essentially hierarchical with humans atop the food chain due to their capacity for reason. But perhaps we simply do not understand the capacity of other species for reason. At least there is acknowledgement that: “If present trends continue, this century may well witness extraordinary climate change and an unprecedented destruction of ecosystems, with serious consequences for all of us.”
It is clear that the notion of Wild Law brings lawyers out of their comfort zone and exposes the limits of our language to define the reciprocal relationships that the complexity of the natural world involves but this should not deter us from the task since as Wittgenstein wrote: ‘Ethics cannot be put into words’ but ‘make themselves manifest’. Cormac Cullinan observed: ‘The language of the universe is primarily experiential. It speaks to us in the language of hot and cold, beauty and fear, patterns of events, symbols and associations. However, we must engage with it to ‘hear’ this language. Book learning and scientific rationality can only take us so far. We also need direct experience of nature, intuition and emotions. Therefore in order to become ecologically literate once more and to regain an awareness of the principles which govern life on Earth, we must strive to reconnect and engage empathically with wildness and nature, and if possible, with wilderness.’
Cullinan also warns that ‘we must beware of succumbing to the temptation of devising the ‘Great Solution’ that will enable all of human theories of jurisprudence to be transformed instantly into a reflection of the Great Jurisprudence’. Too often we have seen utopian ideas being appropriated by dictatorships that justified their actions on the utilitarian grounds that it was for the greater good. Instead he says: ‘doing very small Earth-caring things on an ongoing basis is probably more important than the odd grand gesture (or World Summit), though both can have their place.’ In a revolution such as this it seems to me that change is more likely to come from the periphery than the centre.
Perhaps it is in poetry an art form whose ambiguity puts fear into lawyers that offers the best expression of Wild Law. In writing this lecture the closing lines of a poem by W.B. Yeats were in my mind:
Oh chestnut tree, great rooted blossomer,
Are you leaf, the blossom or the bole?
Oh body swayed to music, O brightening glance,
How can we know the dancer from dance?
The dance is more than the dancer, the tree is beyond its constituent parts. We are greater than ourselves, connected to an earth that brought us into being and through engagement with the earth, a deep listening, we may start to understand in all our limitations its shifting laws.