Neither natural nor posited: a contemporary journey towards an Ecological Jurisprudence
Dr Alessandro Pelizzon, Southern Cross University
14 March 2019 at Lismore campus with Zoom links to other locations.
When Christopher Stone asked his provocative question at the end of an introductory class in property law at the University of Southern California in 1972, ‘should trees have standing?’, he could scarcely have predicted how his suggestion would have affected the dominant legal paradigm in decades to come. In the author’s words, ‘[this suggestion] has since assumed a modest but apparently enduring place in contemporary environmental law and ethics, quite out of proportion to its actual impact on the courts.’
Since Stone’s own reflection in 2010, the article’s impact on courts and legislators alike has been, arguably, far more noteworthy than that. The most significant outcome of Stone’s provocative suggestion has certainly been the proliferation of rights of nature cases and legislation across the planet. From the Community Environmental Legal Defense Fund (CELDF) assisted local laws, or ordinances in the US (beginning in 2006 in Tamaquah Borough, Pennsylvania) to the 2008 Ecuadorian Constitution, which expressly grants constitutionally enshrined rights to nature or ‘Pacha Mama’; from the World People’s Conference on Climate Change and the Rights of Mother Earth, convened by Bolivian President Evo Morales in Cochabamba, Bolivia, in 2010, and the resulting Universal Declaration of the Rights of Mother Earth - an aspirational document that expanded upon both the legal innovations and the post-colonial conceptualizations introduced by the Ecuadorian Constitution - to the creation of the Global Alliance for the Rights of Nature; from the establishment of the United Nations Harmony with Nature programme to the Ecuadorian Vilcabamba river case in 2011, the Indian Ganges and Yumuna cases in 2017, and the Colombian Atrato and Amazon cases of 2017 and 2018; from the New Zealand's Te Awa Tupua (Whanganui Claims Settlement) Act to the Victorian Yarra River Protection (Wilip-gin Birrarung murron) Act, both of 2017: this brief list of examples would be in itself sufficient to vindicate Stone’s provocation.
More importantly however, these examples are representative of a conceptual shift that has occurred, both within environmental philosophy and legal theory, in the course of the past four decades.
What began as a self-described thought experiment in the halls of US legal academia in the early 1970’s has certainly become a lived reality in a number of jurisdictions and much more than a theoretical possibility for many activists and scholars alike. Stone asked ‘what would a radically different law-driven consciousness look like? … How would such a posture in law affect a community’s view of itself?’ The answer to his questions was fully articulated for the first time by eco-theologian (and self-described ‘Earth scholar’) Thomas Berry, who called for ‘a jurisprudence that would provide for the legal rights of geological and biological as well as human components of the Earth community.’ Berry called this an Earth Jurisprudence (more recently, other authors have embraced a term that wishes to move beyond the planetary boundaries suggested by Berry, and thus have named it an Ecological Jurisprudence). Berry’s invitation to articulate in political and legal terms the systemic approach to life on earth already advocated by a number of scientists was taken further by South African lawyer Cormac Cullinan in his seminal book Wild Law, where he expanded on the concept of the ‘Great Law’ that Berry had introduced by stating that ‘Earth is our primary teacher as well as the primary lawgiver’. It is Cullinan’s argument that seeded the theoretical terrain from which all aforementioned examples sprang, and Cullinan himself has been involved in a number of these very same initiatives. If Stone’s initial argument was significant in redefining the legal conceptualization of damages beyond the traditional anthropocentric terms within which they were traditionally defined, Berry and Cullinan’s suggestion have made it possible to re-conceptualize nature not anymore as an object of legal human rights – in particular, of property rights – but rather as a subject with and of intrinsic legal rights.
While inspiring in its undeniable momentum, the emergence of this Ecological Jurisprudence is arguably even more significant for the theoretical possibilities it entails: as suggested elsewhere, ‘nature and rights are contested concepts with negotiable meanings,’ and thus scholars should be fully aware of the fact that the yet largely indeterminate terrain occupied by the theory and practice of Ecological Jurisprudence may be already heavily ‘inscribed by humanist precepts of what “rights” and “nature” might consist of’, but, that notwithstanding, the proposal is replete with theoretical possibilities.
The invitation to an Ecological Jurisprudence thus represents a novel – and yet timeless – theoretical terrain in which different legal ontologies can re-imagine the interaction between humans and the great non-human other with and within which we all share our very existence.
Alessandro Pelizzon is a Senior Lecturer in the School of Law and Justice. Alessandro completed his LLB/LLM in Italy, specialising in comparative law and legal anthropology with a field research project conducted in the Andes. His PhD thesis, conducted in Australia, focused on native title and legal pluralism in the Illawarra. Alessandro has been exploring the emerging discourse on rights of nature, Wild Law and Earth Jurisprudence since its inception, with a particular focus on the intersection between this emerging discourse and different legal ontologies. He is one of the founding members of the Global Alliance for the Rights of Nature and of the Australian Earth Laws Alliance, and has organised and participated in a great number of events and initiatives related to this emerging field, both in Australia and internationally. Alessandro’s main areas of research are legal anthropology, legal theory, comparative law, ecological jurisprudence, sovereignty, and Indigenous rights.