Wild Law - In Practice

Michelle Maloney, Peter Burdon, Michelle Maloney, Peter Burdon

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781136008405
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Wild Law - In Practice aims to facilitate the transition of Earth Jurisprudence from theory into practice. Earth Jurisprudence is an emerging philosophy of law, coined by cultural historian and geologian Thomas Berry. It seeks to analyse the contribution of law in constructing, maintaining and perpetuating anthropocentrism and addresses the ways in which this orientation can be undermined and ultimately eliminated. In place of anthropocentrism, Earth Jurisprudence advocates an interpretation of law based on the ecocentric concept of an Earth community that includes both human and nonhuman entities. Addressing topics that include a critique of the effectiveness of environmental law in protecting the environment, developments in domestic/constitutional law recognising the rights of nature, and the regulation of sustainability, Wild Law - In Practice is the first book to focus specifically on the practical legal implications of Earth Jurisprudence.

Part IAgency and implementation

Chapter 2 Earth Jurisprudence and the project of Earth democracy

Peter D Burdon

DOI: 10.4324/9780203798911-2

Human civilization is currently in the grip of social and ecological decline. We no longer have to discuss this crisis in future tense — it is part of the daily reality for many of the world’s people. Arguably the most frustrating aspect of collapse is that many of its current manifestations could have been avoided. In 1992, the Union of Concerned Scientists issued a warning to humanity which read: ‘Human beings and the natural world are on a collision course … No more than a few decades remain before the chance to avert the threats we now confront will be lost and the prospects for humanity diminished.’ Yet, despite a growing public acceptance of the need for radical change, our laws, economics and powerful vested interests have maintained a program of business as usual. Thus, in 2005, the United Nations Millennium Ecosystem Assessment (MEA) (2005) reported that every living system in the biosphere was in a state of decline, the rate of which was increasing. The MEA further estimates that humans are responsible for the extinction of between 50–55 thousand species per year, a rate unequalled since the last great extinction some 65 million years ago. More recent studies of future energy consumption (International Energy Agency 2013) and ecological sustainability (Randers 2012) continue to project human society into a dangerous and ultimately fatal future.

Earth Jurisprudence is a vision for radically re-configuring our legal system and governance structures so that they support rather than undermine the health and integrity of the Earth community. To introduce this vision, I will proceed in four parts. In part one, I argue that the root causes of the present environmental crisis are an anthropocentric worldview coupled with neoliberal growth economics. In part two, I illustrate how these root causes have shaped the development of environmental protection law since the industrial revolution. In particular, I argue that environmental law is currently developed by a plutocracy which has vested interests in limiting its application. In part three, I unpack two important elements of Earth Jurisprudence. First, I describe Earth Jurisprudence as an ecocentric concept of law. This concept holds that human laws are subordinate to the ecological integrity of nature. Purported laws that contravene this standard are judged as defective and provide a justification for civil disobedience. Following this, I examine ecocentric governance and the project of Earth democracy. I argue that democratic frameworks should be deepened to allow for greater public participation and to achieve dilution of moneyed interests. I contend that decisions made by the collective will reflect social and ecological interests better than those made by private interests operating within a plutocracy.

The search for root causes

There is a long history in environmental studies of locating and developing methods to combat the ‘root causes’ of the environmental crisis. Canadian philosopher John Livingston (1981: 24) explains this approach, noting: ‘Oil spills, endangered species, ozone depletion and so forth are presented as separate incidents and the overwhelming nature of these events means that we seldom look deeper.’ ‘However’, Livingston argues (1981: 24), ‘these issues are analogous to the tip of an iceberg, they are simply the visible portion of a much larger entity, most of which lies beneath the surface, beyond our daily inspection.’

In my view, the most sophisticated attempt to locate a root cause was developed by social ecologist, Murray Bookchin. According to Bookchin, the domination of nature by human beings stems from and takes the same form as the myriad of ways human beings exploit each other. The key to this analysis is ‘hierarchy’ — a term that encompasses ‘cultural, traditional and psychological systems of obedience and command’ (Bookchin 2005: 3). This includes the domination of the young by the old, of women by men, of one ethnic group by another, of the wealthy over the poor and of human beings over nature. Thus, according to Bookchin (2007: 13), to separate ecological problems from social problems or even to play down or to give token recognition to their relationship ‘would be to grossly misconstrue the source of the growing environmental crisis’.

What attracts me to Bookchin’s analysis is that it allows us to acknowledge and go beyond the common explanation for environmental exploitation advocated by many environmental philosophers — namely anthropocentrism. ¹ According to this view, human beings exploit the environment because they conceive it as existing for their own personal use and benefit. Anthropocentric logic assigns value to human beings alone and assigns a significantly greater amount of value to human beings than to non-human entities. Anthropocentrism regards humans as the central fact or final aim and end of the universe and views and interprets everything in terms of human experience and values. Finally, anthropocentrism promotes a separation of people from nature and positions us at the imagined centre of the universe. From this perspective, the environment is rendered peripheral and understood as a resource to satisfy human needs, desires and wants. ² Human beings are not understood as members of the mammalian class. We are ‘culturally determined and distinguished’ and ‘set apart from all other uncultured parts of nature’ (Graham 2011: 28).

While certainly instructive, the exclusive focus on mental ideas like anthropocentrism to explain the environmental crisis suffers from mental determinism. Adopting such a narrow perspective is a common shortcoming in social theory. Karl Marx, for example, is often accused of technological determinism (Cohen 1978), or of class struggle determinism (Marx and Engels 1879). Other theorists place the nature dictates argument (Diamond 2005), the process of production (Holloway 2002), changes in lifestyle or consumption (Hawken 2007) or mental conceptions of the world (Klein 2008) as being sufficient to cause social change. Certainly, mental determinism is as insufficient as any other narrow project. ³ In practice, major social transformations occur through a dialectic of transformations across a range of moments and develop unevenly in space and time to produce all manner of local contingencies. This is evidenced in the contrast between the Occupy movement and the second Arab revolt. A deterministic stance fails to capture this complex interplay and produces a contingency in social development (Harvey 2010: 196).

Another reason for moving away from a strict mental explanation for the environmental crisis is that it ignores structural forms that perpetuate exploitation independent of a particular philosophical worldview. The most important of these is industrial capitalism. Capitalism’s inherent thirst for short-term growth and self-expansion ⁴ is fundamentally inconsistent with environmental protection (Magdoff and Foster 2011). Since the industrial revolution (1750), capitalism has grown at a compound rate of 2.5 per cent. In good years, growth is measured at an average of 3 per cent (at this percentage, the rate of growth doubles every 24 years). This growth is subject to uneven geographical development, particularly since the onset of neoliberal economics in the 1970s (Harvey 2006: 87–119). When capitalism was first constituted and material resources were abundant, 3 per cent compound growth was not considered a problem. However, this is no longer the case in the age of scarcity and resource wars (Klare 2002; 2012). Indeed, the total economy in 1750 was approximately US$135 billion. It had grown to US$4 trillion by 1950 and US$40 trillion at the beginning of the new millennium. If the global economy doubles over the next decade, it will have grown to US$100 trillion and by 2030 will need to find US$3 trillion profitable opportunities for growth. There are limits to growth and we have hit those limits, both environmentally and socially (Heinberg 2011).

Further, the systemic attributes of capitalism mean that the personality and worldview of individual capitalists is largely irrelevant. It simply does not matter if the director of Exxon Mobile or BHP Billiton is a good person or holds an ecological worldview. No amount of eco-literature, bush walking or Buddhist retreats will release a corporate director from the structural economic and legal pressures that pertain to a capitalist mode of production. Karl Marx makes this point forcefully in volume one of Das Kapital. The capitalists, according to Marx, have no real freedom — they are mere cogs in a mechanism who have to reinvest a portion of their profits and grow their enterprise because the ‘coercive laws of competition force them to’ (Marx 1992: 652). Put otherwise, the coercive laws of competition force capitalists to take a portion of their surplus and put it into expanding production (more labour, or new technology). The alternative is to go out of business and lose social status. As capital personified, their psychology is focused on the augmentation of exchange-value and the accumulation of social power in limitless money-form. If capitalists show any sign of drifting away from their central mission, the laws of competition bring them back into line. Therefore ‘accumulation for the sake of accumulation, production for the sake of production’ (Marx 1992: 652) becomes the central mantra of a capitalist mode of production.

Environmental protection in a plutocracy

The specific development and orientation of environmental law must be understood with reference to the growth of industrial capitalism from 1750. Harvard historian Morton Horowitz (1977: 32) notes that prior to this period, property rights were underpinned by an ‘explicitly anti-development theory’ that limited landowners to what courts regarded as natural use. The ‘natural use’ idea of private property equated to strong trespass law, which barred all uncontested physical entries, and nuisance law that prohibited neighbours from indirectly impairing a neighbour’s enjoyment of land. For example, in the context of river systems a landowner could not disturb the natural drainage of land or take water from a river to the extent that it ‘diminished its quality or quantity’ for landowners downstream (Freyfogle 2001: 4).

It was quickly recognized that the ‘natural use’ conception of property stood in the way of economic progress. To promote development, lawmakers were pressured by economic interests to ‘materially change the meaning of landownership to facilitate… intensive land uses’ (Freyfogle 2001: 4). Horwitz comments:

Law once conceived of as protective, regulative, paternalistic and above all, a paramount expression of the moral sense of the community, had come to be thought of as facilitative of individual desires and as simply reflective of the existing organization of economic and political power.

(Horowitz 1977: 253)

This shift toward development was guided by the understanding that economic growth required more intensive land use than had been practised by previous generations. For example, communities that once enjoyed water laws that protected natural flow had these removed so that industries could draw more water and even introduce pollutants into the water system. Industrial parties required the right to emit smoke that degraded air quality; to make noise that scared livestock and on occasion to emit sparks which had the potential to set wheat fields on fire. Waterwheels disrupted the migration of fish, tall buildings blocked sunlight (Freyfogle 2001: 4). To promote these economic activities the environmental protections were deliberately eroded to promote market growth ‘at the expense of farmers, workers, consumers’ (Horwitz 1977: 254).

Many of the environmental problems that we face today can be traced back to the weakening of environmental protections that occurred during the industrial revolution. Further, the influence that industrial parties have over governments and the legislative process has further strengthened. Indeed, today it is most accurate to describe the governance framework in Western democracies as state-capitalist. State capitalism is a regressive and highly inadequate social theory. It is also fundamentally inconsistent with sustainability and basic principles of democracy.

These inconsistencies can be explained by distinguishing two systems of power — the political system and the economic system. The political system consists of elected representatives who set public policy. In contrast, the economic system consists of private power that is relatively free from public input and control. There are several immediate consequences of this organization of society. First, the range of decisions that are subject to democratic control is quite narrow. For example, it excludes decisions made within the commercial, industrial and financial system. Second, even within the narrow range of issues that are subject to public participation, the centres of private power exert an inordinately heavy influence through financial contributions, lobbying, media control/propaganda and by supplying the personal for the political system itself. Further, corporate leaders not only collaborate intimately with government representatives but acquire a ‘strong role in writing legislation, determining public policies, and setting regulatory frameworks’ (Chomsky 2005: 48). Perhaps the most striking recent example of this was documented by Paul Krugman and concerned the role of the American Legislative Exchange Council in providing the language for Florida’s controversial Stand Your Ground laws. ⁵

In short, contemporary democratic institutions function within a narrow range in a capitalist democracy and even within this narrow range, their function is inordinately weighted toward private power. Indeed, state-capitalism is a plutocracy — rule by moneyed interests where people simply vote periodically for ‘political en...

Table of contents

• Cover Page
• Half Title Page
• Other Title
• Title Page
• Copyright Page
• Table of Contents
• Notes on contributors
• Series editor's preface
• Editors' introduction
• Introduction
• Part I Agency and implementation
• Part II Jurisprudential challenges
• Part III The rights of nature
• Part IV A Wild Law perspective on environmental stewardship
• Index