Law’s Environment
We have now identified the various ways law shapes and impacts our experiences of different environments and the objects in them. Let us move on to consider how to conceptualize law in the environment. Remember earlier in the course when you were tasked with identifying natural law, positivist law, and legal realism in a fictional example? The stories that we tell, retell, listen to, and entertain ourselves with, are laden with law. Stories both represent law and teach us about what law is and where to find it. This may unsettle some previously held beliefs that you may have had about law. Perhaps the assumption that we encounter law mainly in a courtroom or in lawyers’ case files. Or that law was something that originated solely from political decision-making. Law is much more complex and responsive.
Let’s turn our attention to Kristen Anker’s discussion of law as a forest. How can law be a forest?
“Beginning with the ‘logos’ of the ecological, I trace through the ways in which forests might be thought of as a ‘“source’” of law, either as model, metaphor or, scientifically speaking, as a manifestation of fundamental physical laws.”
(Anker 2017, 194)
Forests teach us about the webs of interconnection and relationship that sustain and maintain life. The root systems of trees, the energy exchanges between moss and fungi teach us that everything that is alive on earth depends on an ecosystem, an atmosphere, that functions according to reciprocal relationships and obligations of one system, or one organism, to another. This is law. Law functions in the same way.
“That’s the trouble with people, their root problem. Life runs alongside them, unseen. Right here, right next. Creating the soil. Cycling water. Trading nutrients. Making weather. Building atmosphere. Feeding and curing and sheltering more kinds of creatures than people know how to count.”
(Powers 2018, 4)
Anker, and others, are not suggesting that law is a forest such that we can recognize our human-made, modern legal system in a forest. Rather, Anker (2017) refers to the “mythos” (199) of law as forests that can teach us about the presence, the movement, the responsiveness, and the responsibility of law. Such an understanding of law and law’s presence is not new, but it departs from modern liberal European epistemologies; e.g. dominate ways of knowing. Non-European-settler-colonial ways of understanding law, i.e., Indigenous legal traditions, rely on “the imaginative use of metaphors or constructions [that] are not pure products of human minds but emerge out of relations with our environments” (202).
Think About it
What do you learn from the environment(s) around you?
Trees and “natural” spaces, in urban and non-urban areas around us, teach us quite a bit about the structures and systems of law. Human-focused laws have shaped the environment as if it were an accessory to our human existence rather than a force that precedes human intervention and creation. This does not mean that law is something that we must learn per se from nature, along the lines of natural law thinkers who believed in a predetermined, transcendent law. Rather, awareness to the environment as before and beyond human-focused, human-centred (otherwise referred to as anthropocentric) law opens the possibility of interconnectivity and relationality.
Anthropocentrism
a “crisis of human hierarchy, of global unevenness, of deepening interdependencies, of Earth system decay, of species extinction, of temporary inter and intra-species injustices, and of intensifying patterns of human/non-human vulnerability” (Kotzé 2019, 3)
Now, let’s go back to considering how the stories that we tell are sources of law:
In Module 3, we looked at the Delgamuukw Supreme Court decision, which recognized oral tradition (songs, stories) as evidence that the Gitksan and Wet’suwet’en had long occupied territory that the Delgamuukw dispute confirmed was their ancestral, unceded, land. In spite of ostensibly claiming otherwise, the common law tradition of law that Canada inherited from the United Kingdom also involves the telling, and retelling, of stories. The notion of precedent, through stare decisis, involves the repetition — telling and retelling — of preceding judgements. Similarly, judges and court lawyers commonly use storytelling to set the scene of their judgement or argument (see Davies 2015 and 2017).
From Greek mythology (think Zeus, Aphrodite, Hades…) to the Christian Bible, the Popol Vuh) to fairy tales, cultures around the world and throughout history teach of law—rules, ethics, order—through the trials and tribulations of non-human, animal, and supernatural beings. So why is it that modern law in Western liberal society is practiced and taught as if it were founded within the quasi-sacred halls of courtrooms and legal infrastructures?
Remember Module 1? Legal positivism, which is the primary approach to law in modern Western legal systems, emerged from the Enlightenment era. The Enlightenment was an innovative, creative time that also sparked an ideology of the primacy of man—“the human.” Enlightenment thought established the human as capable of triumphing over nature, through knowledge. The sciences (e.g., astronomy, physics, biology, geography, and philosophy), for Enlightenment thinkers such as Jeremy Bentham, was central to the study, and practice, of law. Legal positivism espouses law as a science that can be discerned through careful reason, rationalism, and logic. This understanding of law does not welcome understanding law as a complex ecological web of interspecies and inter-being relations.
Rights of Nature
Nevertheless, the modern legal system has responded to movements urging non-humans to be recognized as rights holders. Animal law and Earth law are two fields that have flourished in recent years. Legal personhood has been granted to some animals and nature, such as rivers and forests (see Braverman 2020 and Earth Law Centre 2022). However, in conventional applications of animal and Earth law, the rights of nature and the rights of animals are distinguished from the rights of humans following the same Enlightenment-positivistic human made notion of law. Laws are used to grant status to a river or a cat. A rights-based approach can suffer from repeating the same human-centric (male, European, colonial) hierarchical framework that fails to recognize ecology as a living, breathing, complex web itself (Grear 2019).
Expanding the idea of law to include diverse, plural knowledges, stories, and ways of living, means recognizing that human beings will only have health, safety, justice, and security if the earth is healthy and respected.
Responsibility to community, to protect the well-being of that community, should not be antithetical to law if law is meant to be responsive to a population (see Module 1). And yet the individualistic legal subjectivity and legal recognition under modern law privileges hierarchies where patriarchal, colonial, capitalist ideologies prize individualism over community and communal well-being (see Tataryn 2021, 75). In doing so, law can be seen to privilege capital accumulation and further the exploitation and expropriation of all bodies and beings “othered” by capitalism, patriarchy, and colonial expansion. We explored this in Module 3’s discussion of economic, systemic, and structural violence.
Recognition through the modern legal frame of legal personhood may mean little unless it is accompanied by a shift in how and what is given value. Thinking of law in the environment, and law as forests, means shifting value away from the triumvirate of capital, colonialism, and patriarchy, towards ecological relationship.
This is a shift in value that embraces complexity, plurality, and places interconnection and relationship to all beings at the centre of conflict resolution and judgement.
Think About It
Read this article, “Why the First River in Canada to Become a Legal Person Signals a Boon for Indigenous Rights,” about Quebec’s Muteshekau Shipu (Magpie River). Do you believe that a shift in value is possible or already happening?
Buen Vivir/Sumac Kawsay
Buen Vivir, Spanish for “good living,” or Sumak Kawsay in Quechua and Suma Qaman in Aymara, is a concept that has been incorporated into the Constitutions of Bolivia (2009) and Ecuador (2008). Buen Vivir introduces “a paradigm of social and ecological commons that is community-centric, ecologically balanced and culturally sensitive” (Salazar 2015). Buen Vivir is a good example of present-day debates in South America occurring between European-based legal and political systems of governance and Indigenous communities and knowledges. In both constitutions (the founding legal documents of the nation-state), the contributions of Indigenous knowledge are key elements, particularly those based on the Aymara, Quechua and Kichwa Andean traditions. These legal documents provide a template that could extend to other countries, particularly Canada, whose recognition of Indigenous legal traditions and knowledge has lagged far behind.
[G]etting beyond our own disenchantment requires a different practice: not just a turn to imagination, located in human minds, but attention to the way the world is enchanted, the ways in which its mind manifests.
(Anker 2017, 208)