1 Introduction
Expanding the ideal
Framed by the objective of Earth Jurisprudence to secure âconditions that tend to favour the health and future flourishing of the Earth communityâ,1 this book is a foray into the arena legal theorist Margaret Davies demarcates as âthe theoretical reconfiguring of the place of humanity in relation to other beings and the earthâs resourcesâ.2 I argue that a reconceptualisation of the human legal subject that takes the earthliness, which I define as the normative materiality, of the human being into account shifts the focus of law away from the liberal agenda of the pursuit of the individual life project to the project of life itself.3 This shift in consciousness, I contend, underpins restructuring the humanâearth relationship in terms of cohabitation, wherein ânature and human nature are reciprocally engaged, intra-activeâ.4
The late cultural historian Thomas Berry, one of the founding thinkers of Earth Jurisprudence, argued that meeting the Earth Jurisprudence objective would require a fundamental shift in Western consciousness: from human beings exploiting the planet to human beings learning âto be present to the planet in a mutually beneficial mannerâ.5 Being a cultural historian, Berry thought in epochs or eras, leading him to envision a time he called the Ecozoic Era in which this new mode of consciousness would take hold. A large part of Berryâs contribution to the development of Earth Jurisprudence was to advocate for the recognition of the rights of nature as a means of inaugurating this era. Berry imagined law and legal theory playing a particular part in facilitating this shift in consciousness by advocating for the recognition of the rights of nature:
Every component of the Earth community, both living and nonliving, has three rights: the right to be, the right to habitat or place to be, and the right to fulfill its role in the ever-renewing processes of the Earth community.6
Expanding the community of legal subjects to include âevery component of the Earth communityâ has the potential to transform the structure of the humanâearth relationship from that of subject/object to the âcommunion of subjectsâ Berry envisioned.7 The latter is a structure geared to promote mutuality and intimacy within the humanâearth relationship, potentially enabling what Lorraine Code describes as (in terms drawn from Patrick Hayden) ââmodes of existence that exemplify appropriate, sustainable, and beneficial relationships between human and nonhuman beings and their environmentsââ.8
Efforts to recognise the rights of nature and to expand the community of legal subjects to include non-human beings have not been the exclusive purview of Earth Jurisprudence. Legal inclusion of or accounting for non-human entities and life worlds has long been a feature of environmental law and ethics. Carolyn Merchant surveys a number of these efforts, including such highlights as the work of Peter Singer and Tom Regan to âextend the pleasureâpain principle of Bentham and Mill to animalsâ;9 Aldo Leopoldâs âland ethicâ, which âenlarges the bounds of the community to include âsoils, waters, plants, and animals, or collectively, the landââ;10 and Roderick Nashâs elaboration on the land ethic to advocate that rocks be assigned interests, arguing that ârocks, just like people, do have rights in and of themselvesâ.11 Christopher Stoneâs influential query as to whether trees should have standing12 continues to be invoked over 40 years later as a key moment of juridical grappling with the notion of the rights of nature.13
These efforts have borne some good fruit14 but the community of legal subjects has not expanded significantly beyond the human.15 Neither has the humanâearth relationship been transformed to promote greater intimacy and mutuality. Nor have the conditions for whole Earth flourishing been secured (as evidenced by the scientifically confirmed reality of anthropogenic climate change16 with all of its devastating species, ecosystem and whole Earth system effects17). To meet its objectives, Earth Jurisprudence needs new and complementary strategies, one of which I propose. In keeping with the axiom that âchange in relationship begins with change in the selfâ, I argue for redirecting attention away from the âotherâ (ecocentric expansion of the community of legal subjects) to the âselfâ (ecological18 expansion of the human legal subject).19
The notion of expansion implies something already in existence that can be expanded and, in this case, the âsomethingâ is the most prevalent concept-in-use of the legal subject: the rational, autonomous individual. There are other concepts of the legal subject in play within the Western legal milieu, but as Ngaire Naffine indicates, orthodoxy favours the concept of the rational adult âimagined as self-created, pre-social individualsâ.20 In Naffineâs analysis, the ârational, adult actor possesses the biggest bundle of rights and also the greatest bundle of duties, producing a richness of legal personalityâ.21 Naffine discusses this rich legal personality as a thick concept of the legal subject. I argue that, whilst the rational, autonomous individual is a thick bundle of rights and duties, the idea of the human being behind the concept is thin, taking no account of the relational, affective and embodied complexity of human existence.
Relational, affective and embodied are the terms of Jennifer Nedelskyâs multidimensional self who she believes âserves law better than the traditional ârational agentââ.22 Whilst I do not undertake a comprehensive analysis of the relational theory of law to which this concept corresponds, I do note that Nedelsky sees her work in this area as a âstep in the directionâ towards Berryâs call for a âcomplete reorientation in how we see the world and our place in itâ.23 Nedelsky indicates how her work may be expanded upon for further movement in this direction:
Even though [the] focus is on relations among human beings, it invites the kind of relational thinking that will promote a respectful relation to earth and her [sic] many life forms.24
I take up this invitation of expanded relational thinking by arguing for a full awareness of human interconnection with other life forms and systems of the earth and even the universe as a whole. Rosi Braidotti places âthe critical posthuman subject within an ecophilosophy of multiple belongings ⌠a relational subject constituted in and by multiplicityâ.25 In adopting this framework, I place my posthuman legal subject within multiple belongings: universe, Earth and community. I call this super-thick legal subject, constructed out of empirical and philosophical theories about the nature of reality and their implications for human subjectivity emerging from fields such as new materialism and posthuman critical theory, the Cosmic Person.
Why âCosmic Personâ? I argue that this terminology evokes the multiple belongings of material, posthuman subjectivity: as material human beings, we belong to the universe â we are made of stardust â and we belong to the earth because we are part of, rather than superior to or apart from, the whole community of life on this planet. Furthermore, as social entities, we belong to our communities (the socio-cultural constructs in which we are embedded), whether in correspondent confor...