Earth Jurisprudence

Private Property and the Environment

Peter D. Burdon

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781135144234
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The idea of human dominion over nature has become entrenched by the dominant rights-based interpretation of private property. Accordingly, nature is not attributed any inherent value and becomes merely the matter of a human property relationship. Earth Jurisprudence: Private Property and the Environment explores how an alternative conception of property might be instead grounded in the ecocentric concept of an Earth community. Recognising that human beings are deeply interconnected with and dependent on nature, this concept is proposed as a standard and measure for human law.

This book argues that the anthropocentric institution of private property needs to be reconceived; drawing on international case law, indigenous views of property and the land use practices of agrarian communities, Peter Burdon considers how private property can be reformulated in a way that fosters duties towards nature. Using the theory of earth jurisprudence as a guide, he outlines an alternative ecocentric description of private property as a relationship between and among members of the Earth community.

This book will appeal to those researching in law, justice and ecology, as well as anyone pursuing an interest more particularly in earth jurisprudence.

Chapter 1

Introduction

The present legal system is supporting exploitation rather than protecting the natural world from destruction by the relentless industrial economy. (Berry 2006: 107)

1.1 The inquiry

Thomas Berry was a theologian and cultural historian. His observation that law is central to the present environmental crisis is the motivation behind a growing movement in law called Earth jurisprudence. In this chapter, I introduce the inquiry and outline the fundamental themes on which the book is built. I begin by introducing the environmental crisis and describe the relationship between law, culture and environmental harm. I also introduce the concepts of paradigm and paradigm shift, which are used in this book to analyse how law and legal concepts such as private property can shift from an anthropocentric (human-centred) to an ecocentric (Earth-centred) foundation.

1.1.1 The environmental crisis

Our biosphere is sick and is behaving like an infected organism. As carbon has been collecting in our atmosphere, it has also been accumulating in the ocean and as time has passed, deforestation, soil erosion, vanishing wetlands and a whole host of other problems have continued unabated. We face a convergence of crises, all of which present a significant moral and survival challenge for the human species. In 2001 the United Nations Millennium Assessment undertook a four-year study, involving over 2000 scientists from 95 countries, on the health of the planet. Released in March 2005, the report found that 60 percent of global ecosystem services ‘are being degraded or used unsustainably’ resulting in ‘substantial and largely irreversible loss in the biodiversity of life on Earth.’ It further estimated that humans are responsible for the extinction of between 50–55 thousand species each year (Millennium Ecosystem Assessment 2005: 81), a rate unequalled since the last great extinction some 65 million years ago (Berry 2006: 107). These systems and species provide the basis for all life and their devastation undermines the health and future flourishing of all components of the environment.

The scale of the present crisis is so great that in 2000, atmospheric chemist Paul Crutzen argued that the period from the industrial revolution to the present constituted a new geological era. Crutzen (Crutzen and Stoermer 2000: 17) labelled this period the ‘anthropocene’ to describe the significant impact of human activity on the Earth.¹ The term ‘anthropocene’ follows the geological tradition that divides the Phanerozoic eon into Paleozoic, Mesozoic and Cenozoic eras. Commenting on this characterisation, David Suzuki (2010: 17) argues that human beings have ‘become a force of nature’. Indeed, it was not so long ago that hurricanes, tornadoes, floods and droughts were accepted as natural disasters. ‘But now’, Suzuki argues (2010: 17), ‘we have joined God, powerful enough to influence these events.’

Chapter 2 of this book will demonstrate how the institution of private property has facilitated the emergence of the anthropocene and the current environmental crisis. For now, it is sufficient to note that the crisis is very real and largely anthropogenic. These two points were forcibly advocated before the international community in 1992 when 1700 senior scientists (including 104 Nobel Prize winners, comprising more than half of all laureates alive at the time) signed a document called ‘World Scientists Warning to Humanity’ (1992). The opening words read:

Human beings and the natural world are on a collision course. Human activities inflict harsh and often irreversible damage on the environment and on critical resources. If not checked, many of our current practices put at risk the future that we wish for human society … and may so alter the living world that it will be unable to sustain life in the manner that we know. Fundamental changes are urgent if we are to avoid the collision our present course will bring about.

The authors went on to list the areas of collision from the atmosphere to water resources, oceans, soil, forests, species and population. The document also warns:

No more than one or a few decades remain before the chance to avert the threats we now confront will be lost and the prospects for humanity immeasurably diminished. We the undersigned, senior members of the world’s scientific community, hereby warn all humanity of what lies ahead. A great change in our stewardship of the Earth and life on it, is required, if human misery is to be avoided and our global home on this planet is not to be irretrievably mutilated.

The failure of the international community to respond adequately to this and other similar warnings is already devastating communities around the world and has the potential to put the future of most components of the Earth community in great jeopardy.

1.1.2 Environmental crisis and ethics

At the dawn of the twenty-first century there is no greater challenge confronting human beings than the fate of the environment and the community of life it supports. There are many different ways to understand and interpret this crisis. Some of the most visible explanations in environmental-political discourse include industrial capitalism (Foster 2010), consumerism (Alexander 2009), overpopulation (Ehrlich & Ehrlich 1972), patriarchy (Merchant 1980) and anthropocentrism (Ehrenfeld 1978). These approaches are not mutually exclusive and interact in a complex cultural, social, political and economic web. Commenting on this mixture, some theorists have begun to characterise the present environmental crisis as a crisis of culture. Environmental psychologist Ralph Metzner (1999: 99) supports this characterisation: ‘[t]here is a growing chorus of agreement that the deepest roots of the ecological crisis must lie in the attitudes, values, perceptions and basic worldview that we humans of the global industrial society have come to hold.’

Philosopher John Livingston (1981: 24) expands this analysis, noting that disasters are commonly portrayed as a series of separate issues. He writes: ‘Oil spills, endangered species, ozone depletion and so forth are presented as separate incidents and the overwhelming nature of these events means that we seldom look deeper.’ ‘However’ Livingston argues that such ‘issues are analogous to the tip of an iceberg, they are simply the visible portion of a much larger entity, most of which lies beneath the surface, beyond our daily inspection.’

In my view, the most sophisticated explanation of the root causes of the environmental crisis was developed by social ecologist, Murray Bookchin. According to Bookchin (1982: 4; Price 2012: 133–160), the domination of nature by human beings stems from and takes the same form as myriad ways in which human beings exploit one another. The key to this analysis is ‘hierarchy’ – a term that encompasses ‘cultural, traditional and psychological systems of obedience and command’ (Bookchin 1982: 4–5). Hierarchy includes the domination of the young by the old, of women by men, of one ethnic group by another, of the wealthy over the poor and of human beings over the environment.

Bookchin (1982: 62–88) argues that hierarchy has its ultimate foundation in the ‘raw materials’ of early civilisation. However, he also recognises that its emergence and elaboration has a dual effect that is both material and subjective. On a material level, Bookchin (1982: 89) argues that hierarchy attained sophisticated form in ‘the emergence of the city, the state, authoritarian technics, and a highly organized market economy’. On a subjective level, hierarchy found expression ‘in the emergence of a repressive sensibility and body of values – in various ways of mentalizing the entire realm of experience along the lines of command and obedience’. Bookchin (1982: 89) labelled these subjective elements ‘epistemologies of rule’ to denote the emergence of a body of knowledge that normalises the characteristics of a bifurcated hierarchical society.

What attracts me to Bookchin’s statement on hierarchy is that it allows one to theorise myriad ways in which negative hierarchical relationships contribute to environmental harm in an open and dialectical way. It recognises both structural and biopolitical analysis and invites conversation about anthropocentrism, gender, racism and economics. It also provides a foundation for thinking through how these root causes interact with one another. For example, how environmental harm often works in conjunction with racism and class (Bullard 2000), or how poor women are disproportionately affected by environmental catastrophes such as flooding, draught and forced migration (Sontheimer 1991). Thus, while my investigation focuses primarily on anthropocentrism as the ‘deepest cause of the present devastation’ (Berry 1999: 4) I will also move beyond this instance of hierarchy to consider other (mental and material) explanations for the environmental crisis. Specifically, I consider how anthropocentric hierarchy is supplemented and works in conjunction with economic and gender hierarchy.

1.1.3 The relationship between law, culture and power

The law and legal disciplines are not created in a vacuum. Though they appear ‘natural’ and almost self-evident, the law and legal disciplines always tend, to a greater or narrower extent, to mirror the reality in which they are born and in which they grow. (Zamboni 2008: 63)

Legal systems and philosophies emerge from a social context and tend to be animated by the worldview and moral horizon of the political class of a given society (Pashukanis 1989). The political class has historically been closed on the basis of race and gender (Wallerstein 2011a: 77) and continues to be represented predominately by the wealthy (Burdon 2013a). Law is one of the key mechanisms through which this class analyses itself and projects their image to the world. It also represents the dominant operative theory of society and environment within that society.

The instant we begin to approach law from this perspective, the questions we ask about law and the ideas we have regarding its development shift. This point is explicitly recognised by Kermit Hall (Hall and Karsten 2009: 1) in his description of law as a ‘magic mirror’. Hall borrows this phrase from Justice Oliver Wendell Holmes Jr (1981: 17) who noted: ‘This abstraction called Law is a magic mirror, [wherein] we see reflected, not only our own lives, but the lives of all men that have been!’ For Hall, the description of law as a ‘magic mirror’ has two aspects. First, law is understood as a ‘cultural artefact’ and legal historians are encouraged to explore the social choices and moral imperatives that underpin a legal system and its normative concepts (Hall and Karsten 2009: 1). Further, Hall contends that a proper understanding of the relationship between law and society allows one to consider and perhaps even influence the future direction of law.

From this perspective, law mirrors the values, perceptions and goals of the dominant class in society. Further, the future of our legal system depends intimately on how these values perceptions and goals change or adapt to future need – not to mention whose needs they recognise. Reflecting a vast heritage of anthropocentric philosophy and theology, the next section argues that the dominant concept of law in analytic jurisprudence is fundamentally human centred. Following this, I introduce my argument about how our legal system can adapt to reflect ecological goals as reflected in the concept of Earth community.

1.1.4 Law and anthropocentrism

Our law is deeply anthropocentric and directed toward maintaining hierarchical structures for the protection of property and economic growth. To illustrate this point I turn first to legal theory, which as Karl Llewellyn (1962: 372) notes ‘is as big as law – and bigger’. Legal theory deeply informs our concept of law and plays a critical role in shaping the contours and provisions of positive law, i.e. legislation and case law.

Despite great variation, legal theory is predominately anthropocentric. This is specifically true for both natural law and legal positivism, which are concerned ultimately with human beings and human good. More specifically, legal theory is concerned with ‘relations between individuals, between communities, between states and between elementary groupings themselves’ (Graham 2011: 15). Only in rare circumstances does legal theory consider the environment as relevant to human law (Blomley 2001). Indeed, ‘the separation and hierarchical ordering of the human and non-human worlds’ represents a fundamental presupposition on which the cannon of Western law has been constructed (Graham 2011: 15).

In orthodox legal theory, legal positivism is the dominant school of thought. Positivism describes law as a science and holds that no external element (i.e. morality, the environment or religion) enters into the definition of law. Legal provisions are identified by empirically observable criteria, such as legislation, common law and custom. Positivism focuses on the identification and definition of law with reference to ‘abstract legal categories’ and regards those doctrines as ‘authoritative rules’ applicable to each question and dispute requiring legal adjudication (Graham: 2011: 15). This method explicitly considers the influence of the environment, non-human animals, and place irrelevant. As a result, legal categories and prescriptions can be exported across the globe without reference to the unique landscape or populace on which they will operate.

The human-centred nature of legal positivism is expressed further by the passivity of courts to receive cultural evidence (Brown 1999) and their refusal to allow advocates to seek for protection for the environment in its own right (Taylor 2010: 203). As Graham (2011: 15) argues: ‘By imagining and juxtaposing objective and subjective thought, abstract rules and particular contexts and then by privileging objectivity and abstraction, legal positivism epitomises anthropocentric logic.’

In Chapter 2, I describe how private property has been shaped to reflect anthropocentric thinking and the way it not only maintains but also perpetuates a dichotomy between human beings and the environment. Considered through the lens of private property, the environment possesses no inherent value and receives only instrumental value and protection through human property rights. Law and economics scholars are particularly unapologetic on this point. Richard Posner (1986: 32) typifies the instrumentalist view of the environment in his advocacy for privatisation: ‘If every valuable (meaning scarce as well as desired) resource were owned by someone (universality), ownership connotes the unqualified power to exclude everybody else from using the resource (exclusivity) as well as to use it oneself, and ownership rights were freely transferable or as lawyers say alienable (transferable), value would be maximized.’

Neoliberal commentators have used Posner’s justification in their advocacy for the further privatisation of the environment and the enclosure of all common space. And yet, I contend, if human beings are going to survive the ecological crisis (let alone thrive) then we need to shift our law from its current focus on the exclusive rights of private individuals to the needs and interests of the comprehensive Earth community.

1.1.5 Paradigm shift and the concept of earth community

Revolutions are inaugurated by a growing sense … that existing institutions have ceased adequately to meet the problems posed by an environment that they have in part created. (Kuhn 1996: 92)

Physicist and philosopher Thomas Kuhn first articulated the concepts of paradigm and paradigm shift. Writing specifically with regard to science, Kuhn (1996: 43) defined a paradigm as: ‘A constellation of achievements – concepts, values, techniques, etc. – shared by a scientific community and used by that community to define legitimate problems and solutions.’ Cultural and legal theorists have also adopted the term ‘paradigm’ to explain how laws adapt and evolve. Consistent with this literature, for the purpose of this book I define a paradigm as a constellation of concepts, values, perceptions and practices shared by a community, which forms a particular vision of reality that is the basis of the way the community organises itself and creates law (Capra 1985: 11).

Commenting on the notion of paradigm shift, Kuhn (1996: 66–69) argued that social factors or developments in knowledge could lead to a paradigm crisis. This occurs when the dominant paradigm becomes dysfunctional, impacts negatively or loses its meaning for a given society. When this occurs, a society may go through a brief period of dissonance, which is followed by a shift toward a new paradigm. Importantly, Kuhn notes that a society may be completely ignorant or even deny that a paradigm crisis is on them. Broad acknowledgment is not a prerequisite to paradigm shift. However, when a crisis occurs it is not a question of if, but when, a culture adapts to meet the new paradigm. Kuhn (1996: 77) contends: ‘The decision to reject one paradigm is always simultaneously the decision to accept another, and the judgment leading to that decision involves the comparison of both paradigms with nature and with each other.’

The concepts of paradigm and paradigm shift can also be considered alongside analyses of social and cultural epochs captured by writers such as Pitirim Sorokin (1970), Lewis Mumford (1956), Thomas Berry and Brian Swimme (1992). The analysis conducted by Berry and Swimme is explored in Chapter 3 of this book. In contrast to Crutzen’s geological description ‘anthropocene’, Berry and Swimme envision that mental ideas of...