Towards an ecological philosophy of law: a comparative discussion

Abstract

Environmental law finds itself in a very delicate position. Its role is to elaborate rules and principles for addressing multiple ecological crises, yet environmental law is structurally and conceptually rooted in a broader legal tradition thoroughly implicated in the domination and ‘othering’ of nature. The ecological worldview challenges the roots of modern law, casting critical light upon Cartesian dualism and the epistemology of mastery. While environmental law has incorporated some of the new knowledge offered by ecology into its normative texture, and has shifted its focus from fragmented parts and individuals (for example, individual species) towards wholes, relationships and complexity (for example, biodiversity, ecosystems processes), it remains far from being a comprehensive translation of the ecological worldview into law. Against this background, this article will discuss and compare two frameworks – Earth Jurisprudence and Law for Nature – both of which aim to elaborate an ecological philosophy of law. It will be suggested that while their critical premises are similarly grounded on ecological critiques of central legal categories such as subject (persons), object (things) and property (ownership), their respective ethical stances and central strategies are quite different: Earth Jurisprudence aims at articulating an ecocentric narrative in which nature is understood as a plurality of legal subjects endowed with rights; Law for Nature starts from a concept of ecological normativity, which through a continuous transformative process re-orients law, and grounds the relationship between subject and object in the concept of patrimonium. The tensions between subjective rights and objective norms, between individual and community, and between practical action and long-lasting, radical re-orientation, operate as guides for the discussion offered here.

A circular economy within the planetary boundaries: Towards a resource-based, systemic approach

“…Environmental law for example, as credibly shown by DeLucia (2013), historically, is infused with particular epistemological assumptions and cultural values, which reflect a worldview developed "under the influence of the prevailing Cartesian legal ontology". The current position of environmental law internationally is therefore really delicate, as its role is to address multiple ecological crises, while "structurally and conceptually being rooted in a broader legal tradition thoroughly implicated in the domination and 'othering' of nature", hand in hand with science ("the scientific-legal complex") (DeLucia, 2013).…”

“…The subsidiary importance of environmental protection acts and its potential opposition with individual and economic freedom can be observed in the international context 14 . Environmental law is sometimes presented as a "mitigating" or "containment" instrument aiming at reducing the ecological problems created by economic and industrial activities "to the extent possible" (DeLucia, 2013). The same phenomenon is to be found at the national level: in Switzerland for example, some dispositions of the Environmental Protection Act (EPA) 15 are weakened by typical reservations expressed as "wherever possible" (e.g.…”

The relationship between the principle of sustainable development and the human right to a clean and healthy environment in Kenya’s legal context: An appraisal

“…De Lucia summarises the assumptions as being the idea that nature and human beings are radically separate entities, that humans are masters over nature clothed with the authority and know-how to exert mastery over nature in order to improve, control and perfect it with ultimate goal of making it more exploitable. 34 Further building on these critiques, Conor argues that one of the limitations of the human rights approach to environmental protection is that it centralised human concerns in the governance agenda to the detriment of non-human elements of nature. 35 In centralising human being, this approach fails to accord with the reality of the interconnectedness of nature as an integrated whole, with humans being only part thereof.…”

Human rights and the environment in the Anthropocene

“…Of course this does not mean that human rights should promote an anthropocentric focus at the cost of a more ecocentric one (see the discussion below). Human rights in the Anthropocene should rather be seen to have an extended remit or vision -namely -to address ecological and socioeconomic concerns that arise in the Anthropocene more effectively because they are translated into 'human' terms by admitting the inevitability of the human perspective that insists on the nonprivileged participation of humans in the Earth System (De Lucia, 2013). In this way human rights could be used to ignite different forms of state responsiveness -and normative responsiveness more generally -being deployed instead of 'normal' environmental law and governance mechanisms, in order to address more broadly some of the ecological, socio-economic, legal and political crises in the Anthropocene.…”