The Great Jurisprudence

Ian Mason | 13 years ago

Under the new legal and social perspective called for by supporters of Earth Jurisprudence, the language of rights would become a code of respect as humans discover and honour their responsibility for the natural environment.

According to the Isha Upanishad, ‘The man who can see all beings in himself, himself in all beings, knows no sorrow.’ The thought is echoed in the Bhagavad Gita: ‘The self abiding in all beings, all beings abiding in the self, sees he whose mind has been made steadfast by Yoga, who everywhere sees the same.’ The same idea is inherent in the Christian commandment to love thy neighbour as thyself, although the question ‘Who is my neighbour?’ might now receive an extended reply.

In late 2007 the borough council of a town called Tamaqua in Pennsylvania, USA, passed a special law preventing a large corporation from using a disused anthracite pit for dumping toxic waste from nearby rivers. A few months later, a second law gave citizens the power to bring court proceedings to protect the local environment. What was unusual about these pieces of legislation was that they were based on the assumption that nature deserves protection for its own sake – not merely to preserve some human amenity, but because it is valuable in its own right. Economic pressures and economic power were not the over-riding consideration.

In similar vein, the Swedish Environmental Code, effective law since 1999, recognises that ‘Biological diversity must be protected since the natural environment is worth protecting for its own sake’ (emphasis added). The Code provides that economic considerations take second place to environmental protection.

Only a few months ago the people of Ecuador adopted a new constitution which includes the following: ‘Nature… where life is reproduced and exists, has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution. Every person, people, community or nationality will be able to demand the recognition of rights for nature before the public organisms. The application and interpretation of these rights will follow the related principles in the Constitution.’

These are examples of what is coming to be known as an ‘Earth-centred’ approach to law and lawmaking, which is gaining currency among many of those most concerned with environmental protection. Earth law, or Earth jurisprudence, is the practical outcome of a fresh perspective on the whole idea of law and law-making, which recognises that human beings are not the authors of the primary laws that govern human affairs, and that law is something to bediscovered via observation of, and connection and engagement with, the world around us, rather than invented, a purely human contrivance with entirely human ends.

The approach begins with the Great Jurisprudence, a term adopted by Cormac Cullinan in his 2002 book Wild Law, in which he responds to a call from Thomas Berry in his book The Great Work to formulate a new, Earth-centred philosophy of law. Berry sees recent human history as including an exploitative and ultimately destructive relationship between humanity and the planet Earth. The ‘great work’ is to effect a transition to a new culture, based on a mutually enhancing relationship that manifests the unity and interdependence of the human and other-than-human worlds. Part of the great work is to establish a new jurisprudence, or philosophy of law, drawing its principles from nature rather from human imagination or expediency.

The Great Jurisprudence sees the universe as an ordered and lawful entity with its own integrity, in which everything is related to everything else. It sees the human race is an integral part of the whole universe with a role and function that complements the whole and is not in opposition to it. From this point of view, the universe is a great family, towards which the human race, because of its intelligence, inventiveness and creative and/or destructive power, owes a duty of care.

The ideas of Wild Law and Earth Jurisprudence derive from this holistic outlook. The emphasis on ‘Earth-centredness’ in Earth Jurisprudence is intended to realign human legal thinking, fostering respect for the whole material environment in the law-making process, as distinct from the ‘human-centred’ perspective characteristic of most modern jurisprudence. The welfare of the entire integrated system upon which all life depends becomes the focus of law-making, rather than simply the interests of human beings.

From this perspective, the welfare of the Earth itself becomes the source of law and the standard of justice. Actions that damage the integrity of the whole are recognised as unlawful and inherently unjust. The idea that justice ‘renders to everyone their due’ doesn’t refer only to the human race; it includes all species and life systems that are affected by human action. As Cullinan puts it, ‘Earth Jurisprudence… is a philosophy of law and human governance that is based on the idea that humans are only one part of a wider community of beings and that the welfare of each member of that community is dependent on the welfare of the Earth as a whole. It is premised on the belief that human societies will only be viable and flourish if they regulate themselves as part of this wider Earth community and do so in a way that is consistent with the fundamental laws or principles that govern how the universe functions.’

Such an approach has obvious and immediate implications for environmental law, and its ramifications extend into wider spheres, including property law, the law relating to rights and, of course, into economics.

In most parts of the world, certainly under English law and all those countries that derive their laws and legal systems from the common law, property rights are considered to be sacrosanct. In English law the starting position is that a person may do whatever they like with land that they own, provided that it is not unlawful. This can include neglecting it, allowing it to deteriorate, even causing its deterioration by over-use or inappropriate use. The common law recognised no obligations towards any larger community arising from the ownership of land. It was assumed that land ownership conferred full and effective ownership and rights over the whole environment comprised in the title. (This position proved to be so impractical that planning and environmental laws had to be developed to regulate the position and impose some necessary minimum obligations.)

Wild Law approaches property law from quite a different perspective. Once it is rcognised that property ownership also involves effective ownership of the environment, the idea of ownership immediately gives way to the less absolute notions of occupation and use, and useful occupation of land carries with it some basic obligations. At the very least these would include an obligation to keep and, ultimately, leave land in good condition; and an obligation to use it in a manner consistent with the interests of the whole Earth community, keeping the human impact on the natural environment to a necessary minimum. Rights of use and occupation become a sacred trust, rather than an unqualified privilege.

So changed is the the notion of ‘rights’ that it might better be replaced by a new language of ‘respect’: respect for the integrity and value of all beings, not just human beings; respect for their place in the universe and the universal scheme of things; and reverence for the complex, delicate natural systems that support life in all its astonishing forms. Legal systems and remedies would then become instruments for the protection of a carefully regulated interaction between human power and the natural world. Nature and its myriad of systems and species would have a status that could be asserted in human jurisdictions.

Human economics would not be untouched by all this. New measures of economic success would have to be devised. Mere productivity and the accumulation of material wealth would cease to be the sole measures of success. A successful economic activity would be one that met human needs and desires with minimal impact on the natural world. Production would be seen as a cycle of transformation of naturally occurring material through a series of forms that return to the natural world when no longer useful to humans. Every care would be taken to ensure that economic activity could be carried out without causing pollution and environmental damage during the process of production and particularly at its end. Prosperity would become a state of bounteous harmony with the natural world.

Whether we like it or not, and whether we consider it possible or not, all this is called for by the Great Jurisprudence: that is, by an appreciation not only of the lawful nature of the universe we inhabit and the human place within it, but also of the life force that animates it and gives being to all beings. At its very heart is a sense of cosmic selfhood, of being at one with every being, which it is possible for human consciousness to experience and understand. Thomas Berry’s great work is to create a new human culture founded in this understanding. Strangely enough, such a new culture would be entirely consistent with some of the oldest teachings known to humankind.

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Ian Mason'