Posthuman Legal Subjectivity

Reimagining the Human in the Anthropocene

Jana Norman

• Éditeur: Routledge
• Année: 2021
• ISBN:
  9781000424843
• Édition: 1
• Sujet: Law
• Sous-sujet: Law Theory & Practice

This book provides a reimagining of how Western law and legal theory structures the human–earth relationship.

As a complement to contemporary efforts to establish rights of nature and non-human legal personhood, this book focuses on the other subject in the human–earth relationship: the human. Critical ecological feminism exposes the dualistic nature of the ideal human legal subject as a key driver in the dynamic of instrumentalism that characterises the human–earth relationship in Western culture. This book draws on conceptual fields associated with the new sciences, including new materialism, posthuman critical theory and Big History, to demonstrate that the naturalised hierarchy of humans over nature in the Western social imaginary is anything but natural. It then sets about constructing a counternarrative. The proposed 'Cosmic Person' as alternative, non-dualised human legal subject forges a pathway for transforming the Western cultural understanding of the human–earth relationship from mastery and control to ideal co-habitation. Finally, the book details a case study, highlighting the practical application of the proposed reconceptualisation of the human legal subject to contemporary environmental issues.

This original and important analysis of the legal status of the human in the Anthropocene will be of great interest to those working in legal theory, jurisprudence, environmental law and the environmental humanities; as well as those with relevant interests in gender studies, cultural studies, feminist theory, critical theory and philosophy.

1 Introduction

Expanding the ideal

Framed by the objective of Earth Jurisprudence to secure ‘conditions that tend to favour the health and future flourishing of the Earth community’,¹ this book is a foray into the arena legal theorist Margaret Davies demarcates as ‘the theoretical reconfiguring of the place of humanity in relation to other beings and the earth’s resources’.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 human–earth relationship in terms of cohabitation, wherein ‘nature and human nature are reciprocally engaged, intra-active’.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 ‘to be present to the planet in a mutually beneficial manner’.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 Berry’s 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 ‘every component of the Earth community’ has the potential to transform the structure of the human–earth relationship from that of subject/object to the ‘communion of subjects’ Berry envisioned.⁷ The latter is a structure geared to promote mutuality and intimacy within the human–earth relationship, potentially enabling what Lorraine Code describes as (in terms drawn from Patrick Hayden) ‘“modes of existence that exemplify appropriate, sustainable, and beneficial relationships between human and nonhuman beings and their environments”’.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 ‘extend the pleasure–pain principle of Bentham and Mill to animals’;⁹ Aldo Leopold’s ‘land ethic’, which ‘enlarges the bounds of the community to include “soils, waters, plants, and animals, or collectively, the land”’;¹⁰ and Roderick Nash’s elaboration on the land ethic to advocate that rocks be assigned interests, arguing that ‘rocks, just like people, do have rights in and of themselves’.¹¹ Christopher Stone’s 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 human–earth 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 ‘change in relationship begins with change in the self’, I argue for redirecting attention away from the ‘other’ (ecocentric expansion of the community of legal subjects) to the ‘self’ (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 ‘something’ 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 ‘imagined as self-created, pre-social individuals’.²⁰ In Naffine’s analysis, the ‘rational, adult actor possesses the biggest bundle of rights and also the greatest bundle of duties, producing a richness of legal personality’.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 Nedelsky’s multidimensional self who she believes ‘serves law better than the traditional “rational agent”’.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 ‘step in the direction’ towards Berry’s call for a ‘complete reorientation in how we see the world and our place in it’.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 ‘the critical posthuman subject within an ecophilosophy of multiple belongings … a relational subject constituted in and by multiplicity’.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 ‘Cosmic Person’? I argue that this terminology evokes the multiple belongings of material, posthuman subjectivity: as material human beings, we belong to the universe – we are made of stardust – 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...