Por Mumta Ito
Our planet Earth in its present mode of fluorescence is being devastated. This devastation is being fostered and protected by legal, political and economic establishments that exalt the human community while offering no protection to the nonhuman modes of being. There is an urgent need for a system of governance which recognizes that the well-being of the integral world community is primary, and that human well-being is derivative—an Earth Jurisprudence. Thomas Berry
IN THE LAST 40 YEARS ALONE—the time from which the first environmental laws were enacted, we have extinguished 50% of the populations of all species on earth, climate change is upon us, and the world’s ecosystems are collapsing.
One of the key reasons this is happening is because our laws—designed around an economic paradigm that is coupled with the destruction of nature—legitimizes it.
In my career as a lawyer, I have advised multinationals, investment banks, and governments as well as grassroots communities and NGOs working to protect the environment. One thing I learned was that our current structure of law is inadequate to face the challenges of our time. At best, it can slow the rate of destruction, but it cannot prevent or reverse it. This is why I set up Rights of Nature Europe—to bring in new innovative structures of law that can do just that.
Our modern legal system operates within the following outdated paradigms:
- mechanistic (i.e., viewing the world as made up of separate unconnected objects interacting in a predictable way);
- anthropocentric (i.e., viewing the world as existing solely for the use of human beings—this is where ideas about “natural resources” and “natural capital” derive basing nature’s value on its utility to humanity rather than on its intrinsic value); and
- adversarial (competitive/retributive model where one party wins at the expense of another).
None of these paradigms reflects the full scientific reality of how natural systems operate. This gives rise to the illusion of a “power-over” relationship with nature which has led to our current predicament.
Law facilitates economics
There was a time when law facilitated human values—today law facilitates economics. The problem is that it is facilitating an economic paradigm of perpetual growth that is coupled with the destruction of nature.
Our economic paradigm is based on one key concept: the utility value of nature, or valuing nature as a resource for human consumption—the source of ideas like “natural resources” and “natural capital.” However, nature is infinitely valuable—because it is the source of life. Our health and wellbeing are integral with the health and wellbeing of the Earth. We cannot have a viable human economy that destroys the Earth economy because one derives from the other. The logical conclusion is societal collapse.
The European Union has committed to strive toward an absolute decoupling of economic growth from environmental destruction. To achieve this, we need innovative laws that recognize the intrinsic value of nature—if we’re changing the game, we also need to change the rules that govern the game.
Utility value translates in law as nature being an “object” under the law—either property or fair game unless special rules apply. However, this approach, which in the past has been applied to slaves, indigenous people, women, and children who were also deemed by law to be “objects,” has several practical drawbacks that make it almost possible for people and governments to protect nature using current law.
The problem with our current structure of law
The law doesn’t recognize a relationship between us and the rest of nature. Law governs relationships—but only between “subjects” of the law—there are no obligations or legal duty of care toward nature. As a result, anybody has the right to destroy nature that doesn’t belong to anyone. And property owners have the right to destroy ecosystems on their property, unless the law specifically says otherwise. This vacuum in the law leaves nature outside the system, fundamentally unprotected. We are left with the impossible task of reactively legislating to carve out protections, rather than proactively creating the legal frameworks needed to create true sustainability.
As a result, we end up with piecemeal protection and a reductionist approach. This ignores the uncertainty and unpredictability involved in dealing with interconnected living systems.
A good example of this is our endangered species protection system that relies on listing which species are under threat, which takes years of scientific research. However, scientists say we are losing literally dozens of species each day—in the time it takes to update the lists, it’s already too late. Also, in a radically interconnected world, who is to say which species is a VIP, and what effect the loss of a seemingly insignificant species would have on the ecosystem as a whole?
Another consequence is that environmental issues are dealt with almost exclusively by the planning and administrative courts. The only conversation that can happen in court is whether the correct planning procedure was followed, and the outcome is simply a referral back to the planners. There is a presumption in favor of economic benefits, but environmental impact has been quantified and proven (even though scientists agree that it is impossible to do so because of the complexity and unpredictability of interconnected living systems), favouring a precautionary approach.
The only avenue left in law is if a disaster happens and people litigate—the courts will compensate people for proven monetary loss—but there is no obligation to restore the damage to nature, because there is no relationship in law between us and the rest of nature.