Towards an earth-friendly legal system


'Earth Jurisprudence' by Chris JohnstonOur biosphere is sick and is behaving like an infected organism. As carbon has been collecting in our atmosphere it has also been collecting in the ocean, and as time has passed, soil erosion, deforestation, and dramatic losses in biodiversity have continued unabated.

We face a convergence of crises, all of which jeopardise life on Earth. There is a growing recognition that our current approach to environmental law is insufficient and that the situation is worse now than it was forty years ago when the first environmental protection legislation was passed.

The reasons why our current system of environmental law is failing are complex. But one important reason is inherent to law itself. The law does not protect the natural world from destruction, but supports its destruction. The effect of regulation is that if a company has ticked the appropriate boxes and stays within the prescribed legislative boundaries, its activity is acceptable. As a result environmental lawyers generally try to protect communities by monitoring corporate activity and checking license applications.

So the only things regulated by environmental law are environmentalists. The laws regulate the way environmentalists respond, and make them predictable. In addition, corporations often set aside money for appeals which in any case are tax-deductable.

Companies may also have 'indenture acts' that permit them legally to override of environmental laws. The most obvious and harmful example of this is the Roxby Downs Indenture Ratification Act 1982 (SA) that exists over BHP Billiton's Olympic Dam lease and overrides the States Environmental Protection, Aboriginal Heritage, Natural Resource Management, Water Resources and Freedom of Information Acts.

The regulatory framework for environmental protection is defensive in nature and actually impedes our ability to protect the environment. Environmental 'movements' are driven by communities that are unwilling to accept such a defensive role for themselves. They try to address the problems of governance that confine them to this defensive position.

Environmental law remains trapped in a regulatory framework because it regards nature as a legal object, that by definition can be bought, sold, exploited or destroyed to satisfy human preferences. Nature receives its protection through the property rights of human beings, not because it possesses recognised value or legal rights.

People were once treated in the same way. In response to slavery abolitionists did not ask for a 'slave protection agency' — they sought recognition of their rights in law. To secure rights for human beings or nature we should not fiddle with the regulation of how this 'property' can be used. We should change the framework of governance that defined human beings or nature as property in the first place.

Nothing, they say, is as powerful as an idea whose time has come. In the past eight years communities have successfuly been pressing for legislation that gives rights to nature. In Pennsylvania five Municipalities (20,000 people) passed 'rights for nature' ordinances that say nature has right to exist and flourish and gives community standing to advocate the rights of nature.

In 2008, too, the constitution of Ecuador was amended to state that nature has the 'right to exist, persist, maintain and regenerate its natural cycles, structure, functions and its processes in evolution'. To ensure these rights the government is responsible for 'precaution and restriction measures in all the activities that can lead to the extinction of species, the destruction of ecosystems or the permanent alteration of natural cycles'.

Thomas Berry coined the term 'Earth Jurisprudence' to describe this evolution in law. Earth Jurisprudence contends that our law must evolve to reflect the inherent value of nature and that human beings are deeply connected and dependant on nature. This shift has the potential to protect our environment and shift our perception of nature in a way that a regulatory approach cannot.

Peter BurdonPeter Burdon is completing his PhD in Law, on Earth Jurisprudence. He is a board member of the University of Adelaide Research Unity for the Study of Society Law and Religion, and the Conservation Council of South Australia. He is ione of the organisers of Australia's first Conference on Earth Jurisprudence, which takes place in Adelaide 16–18 October 2009.

Topic tags: earth jurisprudence, law, ecology, earth, conservation



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The economic historian Karl Polanyi noted in his 1944 "The Great Transformation: The Political and Economic Origins of Our Time" that the current economic order is unprecedented and rests on three 'fictitious commodities'. They are land, labour and money. Prior to the current economic order, none of these three had been considered as having been produced for sale. As such, according to Polanyi, our economic and property-based legal systems are based on artificial premises.

Another significant point made by Polanyi that is relevant to Earth Jurisprudence is that prior to the current economic order there is no instance in human history of an economy determining social relationships. From this perspective, human society is as downtrodden and affected as the environment is, and perhaps as 'frogs in the pot' we have seized upon the environmental issue is an allegory of our own plight.

If this is so, then progress of Earth Jurisprudence and the many other environmental causes may well be serving a dual purpose!
Subal Krishna das | 30 June 2009

This is a pertinent analysis of our legal system and the reasons why we have not been able to protect the environment from the relentless destruction of the industrial economy. Unless our culture and recognizes that we are part of nature and our social institutions evolve to protect the inherent value of the environment, there is little hope of us correcting our current path.
Jon Myers | 07 July 2009


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