Law and Ecology

New Environmental Foundations

Andreas Philippopoulos-Mihalopoulos, Andreas Philippopoulos-Mihalopoulos

• Publisher: Routledge
• Year: 2011
• ISBN:
  9781136817113
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Law and Ecology: New Environmental Foundations contains a series of theoretical and applied perspectives on the connection between law and ecology, which together offer a radical and socially responsive foundation for environmental law. While its legal corpus grows daily, environmental law has not enjoyed the kind of jurisprudential underpinning generally found in other branches of law. This book forges a new ecological jurisprudential foundation for environmental law– where 'ecological' is understood both in the narrow sense of a more ecosystemic perspective on law, and in the broad sense of critical self-reflection of the mechanisms of environmental law as they operate in a context where boundaries between the human and the non-human are collapsing, and where the traditional distinction between ecocentrism and anthropocentrism is recast. Addressing current debates, including the intellectual property of bioresources; the protection of biodiversity in view of tribal land demands; the ethics of genetically modified organisms; the redefinition of the 'human' through feminist and technological research; the spatial/geographical boundaries of environmental jurisdiction; and the postcolonial geographies of pollution– Law and Ecology redefines the way environmental law is perceived, theorised and applied. It also constitutes a radical challenge to the traditionally human-centred frameworks and concerns of legal theory.

Chapter 1

Looking for the space between law and ecology

Andreas Philippopoulos-Mihalopoulos

1.1 Introduction

This book is about a new critical environmental law. Its ambition is to set up the foundations for a theoretically adventurous, politically radical, methodologically critical environmental discipline that combines law and ecology in a way that belongs solely neither to law nor to ecology. While it is a fact that environmental law and ecology have been going through a co-evolution of sorts for the past few decades,¹ it is also true that the majority of the literature dealing with the connection between law and ecology has been rather measured in its ambition and impoverished in terms of its theoretical credentials. It has remained content with assessing instances of the connection, usually associated with ecosystemic principles and management, while shying away from radicalising the connection and revealing its politically pioneer potential. While such an approach is useful and indeed fundamental for a newly socially and ecologically contextualised environmental law, its effect might prove counterproductive for a theoretical, as opposed to a normative, development of environmental law. It has indeed been noted by critics² that the literature on law and ecology tends to emphasise how existing law already performs (relatively) well through the integration of ecological principles in its dealing with geographically determined, ecosystemically systematised areas of biodiversity, property rights, atmospheric pollution, and so on. The above approach, however, is often associated with two basic problems: first, it is tied up to an unadventurous normativity which, because of its goal-oriented attitude, rejects at the outset any theoretical links whose relevance to the existing law is not immediately evident. Second, the emphasis on ecosystemic organisation risks giving the impression of a rather facile managerial closure of the natural sphere and a corresponding ability of environmental law fully to achieve such management. In other words, the literature reproduces the problems of environmental law itself: short-term goal orientation and the legal illusion of control of the ‘natural’.

The present book, therefore, institutes a break with the above undertheorised, goal-oriented, disciplinary-focused environmental legal perspective. Likewise, it will quickly become apparent that, here, we have not engaged with whether ecological principles and processes can, do or should apply to environmental legal thinking. Indeed, this has been successfully done elsewhere.³ Our endeavour instead has focused on carving a space between law and ecology in which to address the paradoxical and idiosyncratic nature of environmental law. Across the contributing chapters, this space is being referred to variably as critical environmental law, spatial and environmental justice, animality, heterotopia, radical encounter, and so on. The above spaces are not stabilised but volatile, they do not assert but doubt, they do not close the discipline but open up the whole notion of a ‘discipline’.

The book constitutes an ambitious critique which at the same time encourages the law to look outside itself, over at new theoretical areas of influence; and look deeper into its own limited ecological position as simply another form of social expression alongside politics, economics, technology, science, and so on, which, however, is expected to make use of given legal notions and mechanisms. To this effect, ecology in this volume is understood in its broadest possible meaning as the disciplinary and ontological plane on which law finds itself. For the purposes of this anthology, we understand the law to be situated in this wider ecology, what I would call open ecology, that combines the natural, the human, the artificial, the legal, the scientific, the political, the economic and so on, all of which coexisting on a plane of contingency and fluid boundaries.⁴ In some respects, this is the real meaning of Barry Commoner’s first law of ecology, namely that ‘everything is connected to everything else’.⁵ We put forth a processual rather than value-based ecology and, to quote Deleuze and Guattari, ‘we make no distinction between man and nature: the human essence of nature and the natural essence of man become one within nature in the form of production of industry’.⁶ This makes our understanding of ecology legal, just as it makes our law ecological. The ‘production of industry’, that is the various elements that repeat themselves in nature and humanity in the form of processes/products is the focus of the present connection between law and ecology. Values that have led nowhere successfully so far, are now replaced by a study of the processes that transcend the usual dichotomy between human/natural. In this, we follow Guattari’s conception of three ecologies, namely a ‘mental, a natural and a cultural ecology’:⁷ nothing less then, than an ethicopolitical articulation of the connections between subjectivity, biosphere and society,⁸ in which the law finds itself floating about. This new, critical environmental law we attempt to sketch here can only situate itself along other disciplines in an open eco-logy and, in the process, both construct a new oikos (a ‘home’, eco-, from Greek oikos) that will embrace continuous material and conceptual movement; and, at the same time, a new critical language and rationality (-logy, from Greek logos, meaning both language and reason) that will address the complexity of the interconnection between law and ecology.

But (and this is the coup of our approach) this situatedness is unhinged from traditional ontological and epistemological boundaries. This book is a product of the following realisation: that only some of the constituent elements of environmental law can be considered relevant for a new, critical environmental law. We are faced with a double paradox: on the one hand, a law that is both law and non-law, in the sense that it both employs the habitual legal mechanisms and processes in order to deliberate, and allows itself to be influenced, perhaps to a never before seen degree, by other disciplines; and, on the other hand, an ecology that does not focus on nature but on the absence of nature, and its replacement with a plane of contingency, whose articulations belong at the same time to the conceptual and the material, the ‘human’ and the ‘natural’. As a result, environmental law is looking for its identity in an empty ecology, one with neither common language (-logy) between its parts, nor a home (eco-) about which to talk. The eco-logy in this volume signals the collapse of both the house in which environmental law is supposed to situate itself, and the language in which the law is supposed to communicate. Law as existing logos (language and rationality) is spectacularly discredited when faced with the challenges of environmental law: traditional legal dogmatics collapse before the idiosyncracies of environmental law, bastions of reason are replaced by floats of contingency, and trusted linguistic forms manage to attract vehement critique from feminists, ecologists, spatial theorists, autopoets, corporeal materialists and so on.⁹ In the same vein, nature as oikos has been demolished long ago,¹⁰ its death celebrated by a constructivism that allows little room for manoeuvring. ‘There is nothing outside’¹¹ is bad enough, but ‘there is no outside’ is both worse and more accurate. To situate environmental law within this kind of draughty ecology requires a conceptual leap that neither traditional legal reasoning nor ecosystemic rationality can offer. This is a realisation that deviates dramatically from the current law and ecology literature, but one we think pivotal for the construction of a critical environmental law.

Thus, the task of a critical environmental law is to work along its connection with ecology, indeed within this open ecology of disciplinary and ontological fluidity, and construct a new language in order to communicate about this new home. The challenge is multiple, not least because this language can no longer be ‘just’ a language but rather a performance of wholehearted embracing of materiality. It is not coincidental that environmental law is the most readily available means to drag law outside its linguistic ivory tower and land it on the material, the social, the corporeal, the gendered, the spatial, the animal, the molecular. These are the inhabitants of the new home for environmental law: no longer based on the distinction conceptual/material, environmental law becomes one with its ecology, one gesture amongst so many others, trying both to define itself and carry on with its job of protecting its home.

It is clear from the above that we believe in the need to push further the theorisation of the connection between law and ecology. The contributors in this volume have employed theoretical currents and constructions whose relevance for environmental law may not always be immediately apparent, whose role in a ‘planet-saving’ mission may not be so central, whose contribution does not amount to a blueprint for action. This is of course not a failure. On the contrary, we believe that the above-constructed emergencies have reduced environmental law to mere reaction rather than thoughtful action, to patching up rather than taking a step back and then throwing itself in, and indeed to a not so qualified failure in terms of environmental protection. To a large extent, this is attributed to a lack of distance, both ontological and epistemological, from the processes and goals of environmental law. We rarely stop to assess, we have accepted as given a certain traditional legal thinking that remains too positivist for the complexity of environmental issues; we have unquestionably reproduced the human/natural division and even the anthropo/ecocentric distinction; we have looked into environmental law merely as law and not as the idiosyncratic transdisciplinary singular construction that is.

1.2 A new critical environmental law

For the above reasons, the need to theorise is imperative: environmental law needs both to develop its theoretical apparatus to a level comparable to that of other legal disciplines, such as constitutional law, family law or international law and their respective theoretical foundations; and to keep abreast with disciplines at least formally outside traditional legal boundaries but with which environmental law finds itself in a relation of direct connection and reciprocal influence. It is not an exaggeration to say that science, geography, gender studies, development studies, sociology, political theory, economic analysis, to name a few, are directly present in the majority of environmental laws, frameworks, decisions – in short, environmental legal thinking. No longer can the law barricade itself against other disciplines – and if this is true for law in general, environmental law is arguably the most prominent example of such a change. There is no longer a clear-cut boundary between environmental law and, say, science.¹² On the contrary, environmental law is constantly internalising scientific findings, correctly or incorrectly, and acts upon them. Science (at least the science used in the production of legal thinking) is part of environmental law. In that sense, it is of the utmost importance for environmental law to follow the theoretical developments in those disciplines and at least be aware of what is this thing that seems to be changing environmental law from the inside.

In epistemological terms, therefore, the present anthology attempts to deal with the double problem of, on the one hand, an undertheorisation of the connection between law and ecology; and, on the other, an absence of the kind of critical theorising that by now informs everything in and around environmental law. All the contributors in this volume have tried to address the former through the latter. Indeed, it would seem that critical theorising of the kind advocated here is the only possible theorising of environmental law at a time of fluid interdisciplinarity, increasing ecological risks and unparalleled technological advancements. The combination of these three factors is a most powerful and novel one, and characterises all levels of environmental legal thinking, be this local, national, regional, transnational or international.

But allow me to clarify that here we are not merely talking about the need to employ interdisciplinary methodologies, formulate ecological legal regimes, trace the conceptual movement between ecocentrism and anthropocentrism or even attempt a further legal integration of environmental ethics. These are all important issues that to a certain extent feed into existing environmental legal thinking,¹³ although more often than most by appearing briefly in the first couple of paragraphs of socially contextualised writings on environmental law and then calmly forgotten. Rather than reiterating the need for integration of the above, we are insinuating that there is something much more threatening nestled in the very heart of environmental law, a self-destructive movement that potentially contains a great deal of violence against environmental law (and consequently the environment) itself. This is a multiple problem: we are currently witnessing that environmental law is rapidly losing a battle of self-definition, of indeed identity formation amidst threats of, first, politico-economic co-optation and, second, epistemic fragmentation.

The first kind of threat belongs to the field of ontological understanding of the discipline (‘What is environmental law?’), while the second to an epistemological understanding (‘Is environmental law a discreet legal discipline?’). Still, the two threats are clearly linked, not only in the way they are deployed but, more important, in terms of a potential defence against them. In short, this book essentially argues for a solid ethical orientation of environmental law that will enable it to resist both political co-optation and disciplinary fragmentation. Such an ethical orientation, however, can no longer come from a habitual employment of environmental ethics.¹⁴ While this remains important, it is also culpable of misguiding expectations that society may have had of environmental law. To put it bluntly, environmental law cannot save the planet. What is more, society cannot expect environmental law to want to save the planet. As Keith Hirokawa writes, although from a perspective that the present author does not share, ‘deeply held beliefs alone are ill-equipped to achieve progress in environmental law’.¹⁵ And this is perhaps the crux of the problem and indeed the main challenge that the present anthology is facing. For, although environmental law is required to position itself amidst the ecology of unbounded disciplines, non-linguistic materiality, dead nature, human/natural/artificial hybrids and looming ecological disasters; at the same time, and after all its disciplinary excursus, environmental law must always return to the employment of a legal language and house itself in courts. Just as within the dissolved boundary between the human and the natural, there always remains a difference that emerges across temporalities and observational positions,¹⁶ in the same way there is a difference between environmental law and this wide ecology.

However innovative the processes employed by contemporary environmental law, the latter remains a law, still using norms and norm-producing processes, jurisdictional boundaries, temporal limitations. It also remains broadly adversarial, even in its newer forms of market-based mechanisms, regulation and mediation. (There is always one that dictates and the other that resists, there is always power involved in whatever configuration one may care to conceptualise it.) Which means that environmental law’s margin for ethical ecological considerations and any desire to ‘become-other’, as Deleuze and Guattari would have it, is still inscribed within legal processes. These processes have on their side a tried and tested sedimentation, facility of application, path dependence, and indeed the burden of social expectations as to what the law can and should do. There are good reasons for which these processes have remained relevant across time, and it is not our purpose to discredit them. Rather, we aim at fully facing the foundational paradox of environmental law, namely its residual in...

Table of contents

• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• List of contributors
• Series editor’s preface
• 1. Looking for the space between law and ecology
• 2. Towards a Critical Environmental Law
• 3. Foucauldian-inspired discourse analysis: a contribution to critical environmental law scholarship?
• 4. The ecological narrative of risk and the emergence of toxic tort litigation
• 5. The precautionary principle: practical reason, regulatory decision-making and judicial review in the context of functional differentiation
• 6. Biotechnology as environmental regulation
• 7. Perspectives on environmental law and the law relating to sustainability: a continuing role for ecofeminism?
• 8. Animals and the future salvation of the world
• 9. Seeking spatial and environmental justice for people and places within the European Union
• 10. Heterotopias of the environment: law’s forgotten spaces
• 11. Majesty and monstrosity: Deleuze and the defence of Nature
• Index