The Ecology of Law

Toward a Legal System in Tune with Nature and Community

Fritjof Capra, Ugo Mattei, Ugo Mattei

• Publisher: Berrett-Koehler Publishers
• Year: 2015
• ISBN:
  9781626562080
• Topic: Law
• Subtopic: Environmental Law
• Index: Law

Winner, IBPA Benjamin Franklin Award in Politics/Current Events: A systems theorist and a legal scholar present a new paradigm for protecting our planet. This is the first book to trace the fascinating parallel history of law and science from antiquity to modern times, showing how the two disciplines have always influenced each other—until recently. In the past few decades, science has shifted from seeing the natural world as a kind of cosmic machine best understood by analyzing each cog and sprocket to a systems perspective that views the world as a vast network of fluid communities and studies their dynamic interactions. The concept of ecology exemplifies this approach. But law is stuck in the old mechanistic paradigm: The world is simply a collection of discrete parts, and ownership of these parts is an individual right, protected by the state. Fritjof Capra, physicist, systems theorist, and bestselling author of The Tao of Physics, and distinguished legal scholar Ugo Mattei show that this obsolete worldview has led to overconsumption, pollution, and a general disregard on the part of the powerful for the common good. Capra and Mattei outline the basic concepts and structures of a legal order consistent with the ecological principles that sustain life on Earth that better addresses many of the economic and social crises we face today. This is a visionary reconceptualization of the very foundations of the Western legal system, a kind of Copernican revolution in the law, with profound implications for the future of our planet. "Thoughtful... The authors propose a philosophy and jurisprudence that is deeply radical—upending centuries of Western tradition and culture—but possibly crucial to solving looming environmental problems." — Publishers Weekly

CHAPTER 1

Science and Law

In our broad sweep through Western intellectual history, we shall encounter many great scientists and great jurists—on some occasions even embodied in the same person—whose ideas shaped the coevolution of the concepts of the laws of nature and of human laws. To tell this story clearly we first need to unravel some common misconceptions about the similarities and differences between science and jurisprudence.

Both science and law include a theoretical and an applied component. Applied science produces, among other things, technology—the development of specific technical capabilities. Thus science and technology operate in two strongly connected but quite separate domains, and actually technology often takes on a life of its own.

A similar phenomenon occurs in law. A clear distinction exists between legal theory and legal practice.¹ On the one hand, legal theory (also known as jurisprudence, or the philosophy of law) is a theoretical inquiry into legal phenomena. Human laws are the subject matter of jurisprudence just as the laws of nature are the subject matter of science. Legal practice, on the other hand, corresponds to technology in many ways. Like technology, it has a life quite autonomous from legal science, and lawyers sometimes distinguish between “law in books” and “law in action.”²

JUS AND LEX

In order to better understand these parallels, we need to introduce a fundamental distinction that is quite obvious to lawyers but not to the general public. In English, the single term “law” is used to describe two distinct phenomena that many languages other than English use two different terms to describe. Latin jurists, at the dawn of the Western legal tradition, distinguished the idea of jus from that of lex. Similar juxtapositions can be found in many languages—droit and loi in French, derecho and ley in Spanish, diritto and legge in Italian, Recht and Gesetz in German, pravo and zakon in Russian, and so on.

In all these languages, the meaning of law as jus indicates the law as a conceptual framework that abstracts from the reality of human relationships a set of more-or-less coherent principles and rules that are general enough to be reproduced in a variety of settings. This framework is theoretically discussed, elaborated, and continually modified by lawyers serving in a variety of professional capacities (such as professors, judges, practitioners, and legal philosophers). The work of these jurists continually adapts the framework of the law to changing social, political, and cultural conditions, thus “making the law” in these different professional capacities. The roles of academic scholars, who engage in theoretical work and teach the law as a university discipline, and of judges, who in their judicial capacity coherently apply these principles and rules to solve actual social conflicts, are particularly significant in the Western legal tradition.³

Jurisprudence, the theoretical discipline of the law, is acknowledged by lawyers, but not by the general public, who often do not appreciate the richness of this intellectual component in the laws that regulate their lives. People usually reduce the idea of law to what is meant by the term lex (plural leges; the Latin root of “legal” and “legislation”): a concrete rule that governs a factual situation and reflects the will of a governing authority endowed with the power to enforce it. Such specific laws are usually harmonized within the grand scheme of legal theory by the interpretive activity of legal professionals (again in their various institutional capacities) and thus become part of law as a legal system (i.e., the orderly combination of particular laws into a whole, according to rational principles). Thus, the legal systems of the United States or France are not mere aggregates of enacted rules in those countries. The laws governing us in each territory include the highly intellectual dimension of jus, which is a deep part of our culture.⁴

An objective legal order determines and defines subjective individual rights, such as property rights or personal rights. In the languages mentioned above, the words corresponding to jus translate as the English word “right,” a term that evokes both the idea of an objective legal framework and the idea of a subjective right. In Western jurisprudence, rights are seen as zones of protected freedom.⁵

The meaning of law as lex is value-neutral; it refers to the institutional force that produces and formally enacts it, thus making it binding. The broader meaning of law as jus, in contrast, is laden with desirable values, being associated with the ideas of just, straight, and right (as opposed to wrong).

DESCRIPTIVE VERSUS NORMATIVE LAWS

A key difference between the laws of nature and human laws seems to be that the former are descriptive (giving information about something in the natural world) while the latter are normative (prescribing a standard of behavior for humans). However, as we explore the surprising parallels between how these laws have been conceptualized in science and in jurisprudence, we shall see that this clear-cut distinction must also be modified. On the one hand, a descriptive element occurs in the practice of jurists abstracting the relevant laws from a specific network of social relationships. On the other hand, recent discoveries in science, especially in ecology and climate science, suggest strongly that the ecological principles evolved by ecosystems over billions of years to sustain the web of life must be understood as normative laws for human conduct if we are to overcome our global environmental crisis.

“NATURAL LAW” AND THE “LAWS OF NATURE”

In our comparisons of the laws of nature and human laws we will have to be careful to avoid confusion between the terms natural law and laws of nature.⁶ In legal parlance, a “natural law” is one that should be binding only if it is consistent with some higher validating principle, which might stem from a divine source or from human reason. This understanding is in direct contrast to a school of thought called legal positivism. According to legal positivists, law derives its binding power from a sovereign authority, regardless of whether that law is just, fair, or even rational.

The origin of the term “laws of nature” itself is rather fascinating. Throughout the earlier centuries of Western science, various terms were used for the short, concise statements or equations in which scientists like to summarize their theories. They were called propositions, rules, axioms, principles, maxims, and so on. During the second half of the seventeenth century, the expression “laws of nature,” which had rarely been used before, came into frequent use, and in subsequent centuries it completely replaced the previously used terms.

The concept of “laws of nature” was often used explicitly in analogy with human laws. As human laws were binding rules of conduct for a community, so the laws of nature were understood as an order legislated for the entire universe by a divine authority. This analogy caused several philosophical and theological problems. Human laws, notoriously prone to inconsistency, variation, and violation, seemed a poor model for the allegedly immutable regularity of the natural order. Moreover, it was difficult to understand how inanimate matter could be said to “obey” laws in any but a metaphorical sense. In spite of these philosophical difficulties, the concept of the laws of nature became an integral part of natural philosophy or natural science. How this came to be is an interesting story, to which we shall return in Chapter 2.

In the twentieth century, when scientists became increasingly aware of the approximate nature of all their models and theories, they seem to have stopped referring to the regularities they discovered as laws, except for references to the well-known “laws” formulated in previous centuries.

LAWYERS AND SCIENTISTS

Lawyers and scientists are often seen as very different kinds of people. It is usually said that students who do poorly in math and science are those who sign up for law school. Despite many exceptions, especially in American law schools where legal training is offered to students as a graduate program, this conviction is difficult to dispel. Yet because of the difficulties of a career in science, bright young people, after spending a few years in scientific research, often settle for law school, which promises them a more secure and lucrative future. Even these students tend to interpret law school as a second life, a complete shift to a domain of activity unrelated to their previous one. The only exceptions, perhaps, are patent lawyers, who must add some understanding of science to their legal knowledge in order to argue for the innovative nature of the invention they seek to patent.

This segregation is confirmed by the common stereotypes of these two disciplines and their representatives. While scientists are perceived as absentminded, casually dressed individuals who live in a refined world of abstract theory with little practical reality, lawyers are usually perceived as formally dressed people who are practically oriented, concentrating mainly on trivialities (such as negotiating their retaining fee) and engaging professionally in all sorts of nitty-gritty social intercourse—the kind of things that normal people, although worried by them, would rather not have to deal with themselves.

A few years ago, a very distinguished and highly theoretically minded Harvard law professor was appointed for a semester as a visiting fellow at a center for advanced interdisciplinary studies at another Ivy League institution. All the other fellows—physicists, sociologists, anthropologists, historians, and philosophers—were engaging in highly intellectual exchanges with one another, but whenever he entered the faculty common room these conversations would stop. The professor of jurisprudence would then be approached by a sociologist asking him about how to divide the expenses of replacing the elevator in her condominium building, or by a physicist inquiring about whether his insurance company should refund him for damages produced by his current house sitters, and so on. These recurring incidents were frustrating for the professor of jurisprudence, since they undermined his self-esteem as a high-profile intellectual.

This more-or-less constructed social segregation between lawyers and scientists has not always existed, and it does not mean that the legal profession is not considered socially prestigious in many countries. Together with medicine and theology, law schools (known in Continental Europe as faculties of jurisprudence) were historically among the very first higher academic institutions in the medieval West.⁷ Lawyers were among the most prestigious intellectuals throughout medieval times and certainly were not looked down upon as “ambulance chasers” by other intellectual elites, as happens in the United States today. An even cursory look into the biographies of some of the most outstanding intellectuals in the history of Western science shows some interesting surprises.

Sir Francis Bacon, one of the inventors of the modern scientific method of inquiry, was also a very outstanding lawyer. He served as lord chancellor of England—perhaps the highest, oldest, and most distinguished judicial post in Great Britain—and his struggle with Sir Edward Coke in the early seventeenth century shaped much of the current structure of Anglo-American law.⁸ Sir Isaac Newton, the most popular icon of modern science before Albert Einstein, while never active as a practicing lawyer, nevertheless occupied a high legal post, that of chancellor of the exchequer. In that capacity, he chaired one of the most ancient judicial institutions of the common-law tradition, devoted to tax law issues. Newton’s contemporary Gottfried Wilhelm Leibniz (1646–1716), the outstanding German philosopher and mathematician who invented differential calculus independently of Newton, also thought deeply about the practical affairs of state; he wrote voluminously on law, ethics, and politics. In the following chapters, when we sketch the parallel history of science and law in the West, several such fascinating convergences will emerge.

THE SCIENTIFIC METHOD

One of our principal tasks is the exploration of the conceptual and historical relationships between natural science and jurisprdence; thus it is important to clearly understand the nature of science before we begin. Today’s modern word “science” is derived from the Latin scientia, which means “knowledge” in general, a meaning that was retained throughout the Middle Ages, the Renaissance, and the Scientific Revolution. What we call “science” today was known as “natural philosophy” up until the nineteenth century.

The modern understanding of science, which evolved during the eighteenth and nineteenth centuries, is that of an organized body of knowledge acquired through a particular method known as the scientific method. The characteristics of the scientific method were fully recognized only during the twentieth century and are still frequently misunderstood, especially by the general public and by lawyers.

The scientific method represents a particular way of gaining knowledge about natural and social phenomena that occurs in several stages. First, the phenomena being studied are systematically observed, and the observations are recorded as evidence, or scientific data. In some sciences, such as physics, chemistry, and biology, the systematic observation includes controlled ex-periments; in others, such as astronomy or paleontology, such experiments are not possible.

Next, scientists attempt to connect the data in a coherent way, free of internal contradictions. The resulting representation is known as a scientific model. Whenever possible, scientists try to formulate their models in mathematical language because of the precision and internal consistency inherent in mathematics. In many cases, however, especially in the social sciences, such attempts have been problematic because they tend to confine the scientific models to such a narrow range that they lose much of their usefulness. Thus we have come to realize over the last few decades that neither mathematical formulations nor quantitative results are essential components of the scientific method.

Finally, the theoretical model is tested by further observations and, if possible, additional experiments. If the model is found to be consistent with the results of these tests, and especially if it is capable of predicting the results of new experiments, it eventually becomes accepted as a scientific theory. The process of subjecting scientific ideas and models to repeated tests is a collective enterprise of the community of scientists, and the acceptance of the model as a theory is done by tacit or explicit consensus in that community.⁹

In practice, these stages are not neatly separated and do not always occur in the same order. For example, a scientist may formulate a preliminary generalization or hypothesis based on intuition or initial empirical data. When subsequent observations contradict the hypothesis, he or she may try to modify the hypothesis without giving it up completely. But if the empirical evidence continues to contradict the hypothesis or the scientific model, the scientist is forced to discard it in favor of a new hypothesis or model, which is then subjected to further tests. Even an accepted theory may eventually be overthrown when contradictory evidence comes to light. This method of basing all models and theories firmly on empirical evidence is the very essence of the scientific approach.

Crucial to the contemporary understanding of science is the realization that all scientific models and theories are limited and approximate. Twentieth-century science has shown repeatedly that all natural phenomena are ultimately interconnected and that their essential properties, in fact, derive from their relationships to other things. Hence, in order to explain any one phenomenon completely, we would have to understand all the others, which is obviously impossible. No matter how many connections we take into account in ou...