[1759-7196 - journal of human rights and the environment] towards an ecological philosophy of law_ a...

Towards an ecological philosophy of law:a comparative discussion

Vito De Lucia*Doctoral Fellow, Faculty of Law, University of Tromso, Norway

Environmental law finds itself in a very delicate position. Its role is to elaborate rules andprinciples for addressing multiple ecological crises, yet environmental law is structurallyand conceptually rooted in a broader legal tradition thoroughly implicated in the domina-tion and ‘othering’ of nature. The ecological worldview challenges the roots of modernlaw, casting critical light upon Cartesian dualism and the epistemology of mastery.While environmental law has incorporated some of the new knowledge offered by ecologyinto its normative texture, and has shifted its focus from fragmented parts and individuals(for example, individual species) towards wholes, relationships and complexity (for exam-ple, biodiversity, ecosystems processes), it remains far from being a comprehensive trans-lation of the ecological worldview into law. Against this background, this article willdiscuss and compare two frameworks – Earth Jurisprudence and Law for Nature –

both of which aim to elaborate an ecological philosophy of law. It will be suggestedthat while their critical premises are similarly grounded on ecological critiques of centrallegal categories such as subject (persons), object (things) and property (ownership), theirrespective ethical stances and central strategies are quite different: Earth Jurisprudenceaims at articulating an ecocentric narrative in which nature is understood as a plurality oflegal subjects endowed with rights; Law for Nature starts from a concept of ecologicalnormativity, which through a continuous transformative process re-orients law, andgrounds the relationship between subject and object in the concept of patrimonium. Thetensions between subjective rights and objective norms, between individual and commu-nity, and between practical action and long-lasting, radical re-orientation, operate asguides for the discussion offered here.

Keywords: Earth Jurisprudence, legal philosophy, Natural Law, rights of nature, subjectiverights, ecocentrism, property, ecology

1 INTRODUCTION

Over the last 40 years, the science of ecology,with its worldview,1 has exerted an increas-ing influence over western consciousness. The epistemology of mastery – underpinned

* I am thankful to the Editorial Board of this Journal and to the anonymous reviewers forhelping me improve the argument presented in this article. I am particularly thankful to AnnaGrear for her support, encouragement and help. Any errors remain mine alone.1. Despite a diversity of orientations, at times conflicting, within the ‘science of ecology’, asshown by for example, KE Cuddington, BE Beisner, Ecological Paradigms Lost: Routes ofTheory Change (Academic Press, Burlington MA 2005), there is enough common ground totalk of an ecological worldview. See, for example, M Tallacchini, ‘A Legal Framework fromEcology’ (2000) 9(8) Biodiversity and Conservation 1085.

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by Cartesian dualism2 and sustained by the programmatic framework of FrancisBacon3 – no longer goes unchallenged. Environmental law has incorporated some ofthe new knowledge offered by ecology into its normative texture,4 and indeed hasshifted its focus from atoms, parts and individuals (for example, individual species),to wholes, relationships and complexity (for example, biodiversity, ecosystems pro-cesses). Yet we are arguably still far from a comprehensive translation of the ecologicalworldview into an ecological philosophy of law.

This article will discuss two contributions to ecological legal philosophy: EarthJurisprudence and Law for Nature. While setting out from similar critical analyses,these two contributions elaborate two very distinct strategies for the (re-)foundationof law on ecological premises. In this sense both – emerging in a time of crisis – intendto provide a new paradigm for law:5 Earth Jurisprudence focuses on rights of nature;Law for Nature on ecological normativity and on the concept of patrimonium.

The article will proceed as follows: Section 2 (below) will outline the main short-comings of environmental law, and briefly review some accounts which identify aprocess of ‘trickling up’ supposedly closing the gap between law and ecology. This pro-cess of trickling up is found however to be severely hindered by the extant legal order,its principles, its structuring concepts, and its underlying worldview. Section 3, afterhaving identified law as a product – and as a custodian – of a particular culture as embo-died in a particular worldview, will present in turn each of the two afore-mentionedlegal philosophies and their respective challenges to law. Section 4 will carry out acomparative and critical discussion of their different strategies. Lastly, some conclu-sions will be presented.

2 ENVIRONMENTAL LAW: A STRATEGY OF CONTAINMENT?

Environmental law finds itself in a very delicate position, tasked as it is withsetting the normative framework necessary to address a large number of criticalecological problems: climate change, toxic waste, severe pollution of air, water,and soil and biodiversity collapse.6 Yet environmental law has emerged within aspecific historical experience, infused with particular epistemological assumptionsand cultural values and embodying a particular worldview. Historically, law, hand

2. Whereby res cogitans – reason, mind – is the exclusive prerogative of humans. Everythingelse – res extensa – is only inert matter. The Cartesian distinction produced a fracture between themind and the body, the subject and the object. See, ex pluribus, A Grear, ‘The Vulnerable LivingOrder: Human Rights and the Environment in a Critical and Philosophical Perspective’(2011) 2(1) Journal of Human Rights and the Environment 23.3. In a nutshell, Bacon would summon ‘Nature with all her children to bind her to [our] ser-vice and make her [our] slave’, W Leiss, The Domination of Nature (McGill-Queens UniversityPress, Montreal 1994) at 57. See also C Merchant, The Death of Nature: Women, Ecology andthe Scientific Revolution (HarperCollins, New York 1980).4. See RO Brooks, R Jones and RA Virginia, Law and Ecology: The Rise of the EcosystemRegime (Ashgate, Burlington VT 2002).5. As Thomas Kuhn has observed, crises are a required precondition for a paradigm shift,TS Kuhn, The Structure of Scientific Revolutions (University of Chicago Press, Chicago1970, 2nd edn).6. See, amidst a growing sea of evidence, Millennium Ecosystem Assessment, Ecosystemsand Human Well-being: Synthesis (Island Press, Washington, DC 2005) which describes thedire situation of biodiversity and ecosystems.

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in hand with science, has arguably had the role of taming and ‘othering’ nature,through the operation of what has been termed the ‘scientifico-legal complex’,7

which was developed largely under the influence of the prevailing Cartesianlegal ontology.8

As Bosselmann observes, while environmental law has been able to save manytrees, it may well have lost sight of the forest, which is being lost at an ever morealarming rate.9 Environmental law has predominantly functioned as a mitigatinginstrument whose strategic aim is that of containment: the ecological disruptionof economic and industrial activities is to be mitigated, contained or otherwisereduced to the extent possible. Incorporating best available technologies (BATs),best environmental practices (BEPs), and emphasizing the internalization of envir-onmental costs, much environmental law maintains a ‘business as usual tone’.10

Market-based environmental policy forms the prevailing orthodoxy.11 Voluntarystandards12 and sustainability certifications based on NGO-Industry partnerships13

are on the rise, reflecting the central role that the private-public partnershipsmodel has attained since at least the 2002 World Summit on Sustainable Develop-ment. Meanwhile, however, the destruction of ecosystems continues: for example,the eco-destructive extractive industry’s practices, as evidenced by the currentAlberta Tar Sands project, provides but one macroscopic instance. The fact thatsuch practices must respect some standards seems merely to confirm the contain-ment role of environmental law, since the overall framework of action remainsthat of industrial capitalism and a ‘growthist’14 development model. In this senseenvironmental law also arguably functions as a legitimating mechanism, operatingas a ‘force or line designed to keep chaos […] at arm’s length’,15 separating ‘thesacred [from] the abject’.16 In this light, environmental law’s protectionism andthe preservation of ‘the more “majestic” aspects of Nature’ rely upon acts of partitionand classification in which ‘islands of wildness […] are conceivable only on the basis

7. J Holder, ‘New Age: Rediscovering Natural Law’ (2000) 53(1) Current Legal Problems 151at 165.8. Characterized by a powerful set of binaries reflecting a fundamental dualism.9. K Bosselmann, ‘Losing the Forest for the Trees: Environmental Reductionism in the Law’(2010) 2(8) Sustainability 2424.10. Holder (n 7) at 167.11. Particularly in the US, see for example, D Kysar, Regulating from Nowhere. Environmen-tal Law and the Search for Objectivity (Yale University Press, New Haven 2010).12. Such as the Gold Standard (certifying carbon credits projects) <http://www.cdmgoldstandard.org/>.13. Such as the Forest Stewardship Council certification (certifying ‘sustainable’ wood pro-ducts) <http://www.fsc.org>.14. Growthism has been defined as ‘the utopian faith in the inevitability of endless materialgrowth’, R Douglas, ‘Growthism and the Green Backlash’ (2007) 78(4) The PoliticalQuarterly 547.15. M Hasley, ‘Majesty and Monstrosity: Delueze and the Defence of Nature’ inA Philippopoulos-Mihalopoulos (ed), Law and Ecology: New Environmental Foundations(Routledge A Glasshouse Book, Oxon, New York 2011) at 218–19.16. Ibid., at 219. In a similar fashion, albeit using a Focualdian approach, Lee Godden empha-sizes how modernity constructs nature as other, and in doing so allows only one of two alter-native views: either as an object of control – through property rights – or as ‘wilderness to bepreserved apart from human society’, L Godden, Nature as Other: The Legal Ordering of theNatural World (PhD Thesis, Faculty of Law, Griffith University 2000) at 2.

Towards an ecological philosophy of law: a comparative discussion 169



http://www.cdmgoldstandard.org/

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http://www.fsc.org

of an ongoing and generalized ecological violence’17 entirely consistent with – andtypifying – growthist priorities.

Finally, environmental law is traditionally reactive and fragmented into many sub-fields (water, air, soil, biodiversity, waste, climate etc.), and thus contributes to thefragmentation, individualization, and externalization of nature ‘such that it remains“other”’,18 in a way which reflects and replicates the dualist, reductionist and mechan-istic worldview of modernity.

2.1 Is a new worldview trickling up?

Despite the broad intransigence of the status quo, there nonetheless appears, primafacie at least, to be a significant evolution taking place in the manner in which lawunderstands, translates and accommodates nature within its normative and regula-tory framework. Emmenegger and Tschentscher observe a progression ‘from apurely anthropocentric vision […] to acknowledging an intrinsic value of nature’,marking ‘a change of the predominant paradigm in international environmentallaw’.19 Brooks et al. show how the evolution of the relationship between lawand ecology in the US has led to the current model of ‘ecosystem regimes’.20

Others speak of an on-going transition from egocentric to ecosystem approachesto environmental protection.21 Such narratives seem to provide evidence of a pro-cess of a ‘trickling up’ of the ecological worldview. Yet the new language of eco-systems is ambiguous, and is still embedded in a legal ordering which remains theexpression of more outdated ontologies of humanity and nature.22 The dominantvalue of utility to humans is still stubbornly central in most international environ-mental regimes.23 Moreover, well established principles of environmental law andpolicy – such as the Polluter Pays principle – operate within the theoretical frame-work of environmental economics.24 Cost-benefit evaluations remain a central con-cern of legislative and of administrative decisions.25 Even precaution, arguably the

17. See Hasley (n 15) at 219.18. Holder (n 7) at 167.19. S Emmenegger and A Tschentscher, ‘Taking Nature’s Rights Seriously: The Long Way toBiocentrism in Environmental Law’ (1994) 6(3) Georgetown International Environmental LawReview 545 at 547–8.20. Brooks et al. (n 4).21. See WJ Christie, M Becker, JW Cowden and JR Vallentyne, ‘Managing the Great LakesBasin as a Home’ (1986) 12(1) Journal of Great Lakes Research 2 at 4. Indeed the Great Lakesis one clear example of the integration of ecosystem ecology into a transboundary legal frame-work, as evident in the 1978 Agreement Between Canada and the United States of America onGreat Lakes Water Quality, as amended in 1983, 1987 and 2012.22. Emmenegger and Tschentscher (n 19) recognize how in the field of international environ-mental law – and sometimes within individual legal instruments – different underlying ethicalorientations inform specific provisions and/or Treaties.23. See A Gillespie, International Environmental Law, Policy and Ethics (Oxford UniversityPress, Oxford and New York 2000).24. See, among others, HC Bugge, ‘The Principles of Polluter Pays in Economics and Law’ inE Eide and R van der Bergh (eds), Law and Economics of the Environment (Juridisk Forlag,Oslo 1996).25. The UNFCCC and its Kyoto Protocol provide an exemplary case. See also Kysar (n 11).




environmental principle with most far-reaching potential,26 is most often framed asbeing a risk management tool organized around the central concepts of ‘lack’,‘serious or irreversible damage’ and ‘cost-effectiveness’,27 rather than being inter-nalized as a permanent modality expressing an inherent – and epistemologicallyinsuperable – state of uncertainty.28

It is against this background that the rest of this article will discuss the possibi-lities of moving towards an ecological philosophy of law by way of comprehensivere-articulations of the premises – ontological, epistemological and axiological –of law.

3 TOWARDS AN ECOLOGICAL PHILOSOPHY OF LAW

Law and culture are entangled, and mutually constitutive.29 Defining and classify-ing the real – a typical legal operation – always implies a prior philosophical com-mitment, and its re-production.30 Law is in this respect a ‘major articulation of aculture’s self-concept, representing the theory of society and environment withinthat culture’.31 This ‘self-concept’ is contingent on a wider worldview, understoodfor the purposes of the present argument as a ‘network of coordinates throughwhich the bearers of [a given] culture perceive reality and construct their mentalimage of the world’.32 A worldview is thus the latent (others might say tacit)model ‘accepted in a given society’ which guides a member of that society ‘inall his actions’, and as such, ‘defining human consciousness’ in a particularculture.33 This description resonates with the Foucaldian ‘fundamental codes of

26. Though subject to contested views. See, ex pluribus, J Peel, ‘Precaution – A Matter ofPrinciple, Approach or Process?’ (2004) 5(2) Melbourne Journal of International Law.27. Rio Declaration, Principle 15.28. One of the crucial elements of the precautionary principle is the ‘lack of full scientific cer-tainty’ (Rio Principle 15). Such lack is in most cases considered a temporary condition, to beprogressively eliminated: ‘measures based on the precautionary principle should be maintainedso long as scientific information is incomplete or inconclusive’, Communication from the Com-mission on the Precautionary Principle COM/2000 (emphasis mine). The stringency of precau-tion is, moreover, more evident in cases regarding human health and safety, rather than theenvironment. See for example, N de Sadeleer, ‘The Precautionary Principle in EU Law’(2010) AV&S 173. On the other hand, precautionary action is to be triggered only whenfaced with potentially ‘serious or irreversible damage’ (Rio Declaration, Principle 15).29. In order to ‘understand how a culture is put together and operates […] one cannot fail toconsider law; to consider law, one cannot fail to see it as part of culture’; L Rosen, Law asCulture: An Invitation (Princeton University Press, Princeton 2008) at 6–7. See also C Geertz,Local Knowledge: Further Essays in Interpretive Anthropology (Fontana Press, London 1983)at 218. See also Brooks et al. (n 4).30. Tallacchini (n 1). See also C Grzegorczyk, ‘Le concept de bien juridique: l’impossibledéfinition?’ (1979) 24 Archives de philosophie du droit, Les biens et les choses 259, particu-larly at 269.31. JC Smith and DN Weisstub, The Western Idea of Law (Butterworth-Heinemann, Oxford1984) at vii.32. AJ Gurevich, Categories of Medieval Culture (Routledge & Kegan Paul, London 1985)at 13.33. Ibid., at 13.




a culture’,34 which govern its ‘schemas of perception’35 and form the particular,contingent and historical a priori, on the basis of which ‘ideas […] appear, sciences[are] established, experience [are] reflected in philosophies, rationalities [are]formed’.36 A specific way of seeing the world will thus determine a specific juri-dical strategy and imagination, which will in turn solidify and structure a specificreality, while occluding others.

It must be kept in mind however that a worldview is never total, but existsrather as a prevailing framework, contestable from both within and without.37

As such, a worldview can limit and orient, even discipline, how law and legalactors articulate reality, or how they mediate new knowledge or social strugglesbut cannot ultimately determine these choices.38 It is in this incomplete yet power-ful sense that the current dominating legal mode39 is framed by, and reproduces, itsfoundational narrative, its anthropocentric, utilitarian, worldview.40 In this world-view, the external world is imagined as an assemblage of passive entities, domi-nated by physical laws and susceptible to subjugation and appropriation by thesovereign subject, whether private or public. Those strands of legal philosophyattempting to unsettle and re-compose the relationship between humankind andnature problematize this worldview – legal modernity – both from within and with-out, and question its compatibility with an ecologically deep orientation.41 The twoalternative legal philosophies discussed in the remainder of this article take, to dif-ferent extents, one such re-composing approach: both are premised on the idea thatecological wisdom and values – a new worldview – should (re-)inform the entirelegal order.

34. M Foucault, The Order of Things. An Archaeology of the Human Sciences (RoutledgeClassics, New York 2002) at xxii.35. Ibid., at xxii.36. Ibid., at xxiii.37. That is, internally through critiques articulating subjugated perspectives in a counter-hegemonic fashion, and externally, through confrontation with other cultural frameworks.This latter scenario is now endemic under conditions of globalization.38. A longer discussion of this type of dynamic exceeds the scope of this article. Here I canonly observe that the modern worldview is understood here as a genealogical category, in thesense of a cultural framework always vigilant to the undercurrents of antiodern, preodern andnonodern ideas, values and worldviews. See for example, M Foucault. ‘Nietsche, Genealogy,History’, in M Foucault, Language, Counter-emory, Practice: Selected Essays and Interviews(edited by DF Bouchard) (Cornell University Press, Ithaca 1977); M Foucault, Society Must BeDefended, Lectures at the Collége de France 1975–76 (Penguin Books, London 2004); K Tuori,Critical Legal Positivism (Ashgate, Burlington, VT, Applied Legal Philosophy series 2002),particularly chapter 6.39. Tuori (n 38) calls it ‘mature modern law’; D Wilkinson, ‘Using Environmental Ethics toCreate Ecological Law’ in J Holder and D McGillivray (eds), Locality and Identity: Environ-mental Issues in Law and Society (Ashgate/Dartmouth, Aldershot 1999) calls it ‘liberalwestern law’.40. There are clear parallels with Kuhn’s theory of paradigm shifts in science, particularly asregards the relationship between dominant paradigm and so called counter-instances (Kuhn(n 5) at 77ff.).41. Thus for example Wilkinson (n 39). Besides the two legal philosophical approaches dis-cussed in this article, one can mention at least two other theoretical articulations: critical envir-onmental law and green legal theory. For the former see Philippopoulos-Mihalopoulos (n 15);for the latter M M’Gonigle, ‘Green Legal Theory: A New Approach to the Concept of Envir-onmental Law’ (2008) 4 Ökologisches Wirtschaften.




3.1 Earth Jurisprudence: a strategy of rights

Earth Jurisprudence (EJ) is an emergent philosophy of law, just over a decade old.42

Its origin can be traced to the works and vision of Thomas Berry,43 although it drawson several intellectual sources, such as subjugated indigenous traditions, deep ecologyand religious notions of the sacredness of nature.44 While there is no uniformapproach or theoretical framework, the main unifying premise can be indicated inthe recognition that the unfolding ecological crises are a consequence of a wider cul-tural crisis. Law, in turn, is seen as a ‘significant description of the way a society per-ceives itself and projects its image to the world’,45 and as such, it is part of theproblem: ‘the legal order reflect[s] a harmful and outdated anthropocentric world-view’.46 EJ ‘analyses the contribution of law in constructing, maintaining and perpe-tuating anthropocentrism and looks at ways in which this orientation can be […]eliminated’.47 Central critical targets of EJ are the dominant prevailing conceptionof humanity and the philosophy and law of property, seen as being a key mechanismfor the exploitation of nature. Berry, in particular, has endeavoured to outline a newconception of human being by translating recent scientific insights – primarily thoseof ecology – into narrative form, with the goal of expanding the reach of human ethicsand elaborating an ecocentric cosmology in the form of a new story. Cullinan hasfurther developed this approach specifically in relation to the idea of law. He empha-sizes how any given legal order is constrained by its tacit frame of reference, by thedeep structure of the prevailing social values.48 This is evident as regards the secondmain theme running through EJ: that of property. Western law ‘thinks’ in terms ofproperty rights and property relations: land and nature are automatically conceivedas consisting of parcels and objects to be owned.49 Burdon, for example, arguesthat the theory and idea of property rights provides a foundational self-understandingof humanity in relation to the environment, rooted in an anthropocentric apprehension

42. PD Burdon, Earth Jurisprudence: Private Property And Earth Community (PhD Thesis,Adelaide Law School, The University Of Adelaide, May 2011a) at 129–30. Important texts inthe emerging ‘canon’ of Earth Jurisprudence are, ex pluribus, T Berry, The Great Work: OurWay into the Future (Bell Tower, New York 1999); C Cullinan, Wild Law: A Manifesto forEarth Justice (Siber Ink, South Africa 2002); M Bell ‘Thomas Berry and an Earth Jurispru-dence: an Exploratory Essay’ (2003) 19(1) The Trumpeter: Journal of Ecosophy 69;T Berry, Evening Thoughts: Reflecting on Earth as Sacred Community (edited by ME Tucker)(University of California Press, Berkeley 2006); PD Burdon, Exploring Wild Law: The Philo-sophy of Earth Jurisprudence (Wakefield Press, Kent Town 2011b); PD Burdon, ‘Wild Law:The Philosophy of Earth Jurisprudence’ (2010) 35(2) Alternative Law Journal. Further refer-ences will be given throughout the text.43. See Burdon 2011a (n 42) and C Cullinan, ‘A History of Wild Law’ in Burdon 2011b(n 42); Cullinan however talks of the story of wild law and Earth Jurisprudence as being‘both the subjective, individual stories of how each of us came to these ideas and connectedwith other minds, and is simultaneously part of a wider cultural story’, ibid. at 12.44. Burdon 2011a (n 42) at 131; SP Siemen, ‘Earth Jurisprudence: Toward Law in Nature’sBalance’ (2008) 11 Barry Law Review 1 at 2.45. Burdon 2010 (n 42) at 58.46. Burdon 2011a (n 42) at 131.47. Burdon 2011a (n 42) at 131.48. Cullinan (n 42) at 45.49. ET Freyfogle, Justice and the Earth: Images for our Planetary Survival (University ofIllinois Press, Urbana 1996) at 49, as quoted by Burdon 2010 (n 42) at 58.




of the world.50 The law of property in land reflects a worldview in which it is ‘right’for humanity to subjugate and exploit nature.51 Property law is inscribed within a tacitcultural reference – a worldview – which, EJ scholars argue, must itself be changedbefore alternative ways of imagining property relations can take hold and be translatedinto legal principles. Future legal concepts, argues Burdon,52 will be shaped by thecultural context from which they emerge.

3.1.1 Natural Law?

EJ, particularly in some of its prevailing interpretations, seems to move in the direc-tion of Natural Law, notwithstanding Cullinan’s dismissal of Natural Law as beinginherently anthropocentric,53 and other EJ theorists’ scepticism towards this move-ment.54 EJ is founded on what Berry calls the Great Law (and Cullinan, the Great Jur-isprudence): a set of timeless and unified principles, or laws, ‘manifest in the Universeitself’,55 and which serve as a standard against which human laws are to be assessed.Burdon is the author who has most clearly elaborated – and advocated56 – a NaturalLaw interpretation of EJ,57 albeit one infused with an ecocentric cosmology.58 Heargues that the Great Law can be discovered through scientific inquiry, yet that thismethod can provide only ‘approximate descriptions that are interpreted and appliedby human lawmakers’.59 The goal of scientific inquiry in this context is that of dis-covering the governing principles of nature and the fundamental norms of human–Earth relationships.60 In this context, Earth has the dual role of teacher and lawgiver.61

It is noteworthy that the relation between the Great Law and Human Law is consideredrelevant only in decisions concerning the environment, and particularly humanity–Earth interactions and transactions.62 However, whenever relevant, this relationship

50. Burdon 2011a (n 42).51. Cullinan (n 42) at 177.52. Burdon 2011a (n 42) at 129.53. Cullinan (n 42) at 68. Many others dismiss it as well, according to Burdon 2011a (n 42) at134. However, Lynda Warren also believes the ‘similarities [between EJ and Natural Law] aregreater than the differences’, L Warren, ‘Wild Law – the Theory’ (2006) 18 Environmental Lawand Management 11 at 13.54. See for example, A Schillmoller and A Ricketts, ‘Recognising Rights for Nature: A Nego-tiation of Principle and Pragmatism’ (2012) 21 Transformations; and A Schillmoller andA Pelizzon, ‘Mapping the Terrain of Earth Jurisprudence: Landscape, Thresholds and Horizons’(2013) 3(1) Environmental and Earth Law Journal.55. Cullinan (n 42) at 76–7.56. Burdon 2011a (n 42) at 135.57. ‘Earth Jurisprudence’ observes Burdon, ‘can correctly be described as a theory of NaturalLaw’, Burdon 2011a (n 42) at 133–68.58. Burdon draws on the classical natural law tradition, and particularly the work ofSt. Thomas Aquinas, and analyses both Thomist and neo-Thomist natural law traditions, butfocuses primarily on Aquinas’ work, Burdon 2011a (n 42) at 133–68.59. Burdon 2011a (n 42) at 136 (table one) and at 145.60. Burdon 2011a (n 42) at 144.61. Berry 1999 (n 42) at 64. Thus also Cullinan (n 43) at 13: ‘[t]he Universe is the primarylaw-giver, not human legal systems’.62. Thus Burdon 2011a (n 42) at 133: ‘In decisions concerning the environment or human–Earth interactions, it is appropriate to construct Human Law with reference to the Great Law.For other matters, the legislator has broad freedom and lawmaking authority’.




is such that only those human laws consistent with the principles of the Great Lawpossess the quality of law. Only such laws are called ‘wild law’.63 Individuals arenot morally bound to laws that do not flow from the Great Law and can legitimatelyresist these corrupt laws through civil disobedience.64 Finally, EJ expands Aquinas’notion of the ‘common good’65 to include not only humankind but the entire EarthCommunity.66 This last is a crucial element of the ‘ecocentric turn’ that Burdonattempts in his re-framing of the Natural Law tradition.

3.1.2 A rights-based approach

EJ manifests this ecocentric turn through an inversion of the approach of contempor-ary environmental law as regards the space of the legal, the starting point of which is‘that nature is here to be exploited for human ends, but [needs] to be protected whenthe destruction of nature threatens human survival or some other human interest’.67

By contrast, EJ’s starting point is that nature is inviolable and that departures fromthis principle are to be considered as exceptional: ‘[i]n that sense [EJ] is a radicaldeparture from the norms of modern legal thought’.68 To reach this goal, the prevail-ing strategy employed within EJ is a rights-based approach.69 Both Cullinan andBurdon, for example, acknowledge the path-breaking work of Christopher Stone70

in relation to imagining rights of nature as a legal strategic move towards granting

63. Wild laws are ‘the rules, regulations and constitutional principles that give effect to Earth Jur-isprudence’, B Filgueira and I Mason, ‘Wild Law: Is There Any Evidence of Principles Of EarthJurisprudence In Existing Law And Legal Practice?’(UKELA and Gaia Foundation ResearchPaper 2009) at 4. Filgueira and Mason also elaborate a set of ‘indicators’, as a way to measurethe ‘degree of compliance’ of existing laws to the broader framework of Earth Jurisprudence.64. Burdon 2011a (n 42) at 133–4.65. Law is, according to Aquinas, ‘an ordinance of reason for the common good, made by himwho has care of the community, and promulgated’, T Aquinas, Summa Theologica, PrimaSecundae Quaestio 90 article 4.66. Burdon speaks of ‘the common good of the comprehensive whole’, Burdon 2011a (n 42)at 152.67. Filgueira and Mason (n 63) at 4.68. Ibid.69. Schillmoller and Pelizzon (n 54) at 5 describe, for example, EJ as generally advocating‘the recognition of rights of nature’. However, there is no necessary relationship between EJas a legal philosophical framework and a rights-based approach. In fact a number of EJ scholarsand theorists are sceptic or critical of rights discourse. E Fitz-Henry, ‘Between Rights andServices’, Earth Jurisprudence: Building Theory and Practice From, Third Wild Law Confer-ence (Griffith University, 16–18 September 2011) cautions for example against uncriticalembrace of rights discourse (particularly as regards the role nature rights may play towardsfurther marginalization of already marginalized communities and the risk of corporate appro-priation of rights discourse, leading to further commodification of nature). See also, amongothers, K Bosselmann, The Principle of Sustainability: Transforming Law and Governance(Ashgate, Aldershot 2008), particularly chapter 4 (Bosselmann cautions against overextendingthe usefulness of a rights approach); Schillmoller and Ricketts (n 54); Schillmoller and Pelizzon(n 54); even Burdon recognized recently the limitations of a rights discourse, P Burdon, ‘Envir-onmental Protection And The Limits Of Rights Talk’(10 August 2012) Right Now.70. CD Stone, ‘Should Trees Have Standing? Toward Legal Rights for Natural Objects’(1972) 45 Southern California Law Review 450; and CD Stone, ‘Should Trees Have Standing?Revisited: How Far Will Law and Morals Reach? A Pluralist Perspective’ (1985) 59 CaliforniaLaw Review 1.




nature legal protection.71 Berry maintains that every entity has a set of fundamentalrights, originating in the fact of existence:72 ‘the right to be, the right to habitat, andthe right to fulfil its role in the ever-renewing processes of the Earth community’.73

The intention is not to extend the human rights framework but to acknowledge role-spe-cific and species-specific rights: ‘[r]ivers have river rights. Birds have bird rights.Insects have insect rights. Humans have human rights. Difference in rights is qualitativenot quantitative. The rights of an insect would be of no value to a tree or a fish’.74

Employing a rights-based approach is a strategy aimed at delineating legally the respon-sibilities of humanity towards natural entities and a ‘means of giving legal recognitionto nature’s inherent worth by recognising what is already there’.75 Underlying thisapproach is the concept of Earth Community, which presents two main elements: theinterdependence and the subjectivity of natural entities: ‘human beings exist as oneinterconnected part of a broader community that includes both living and non-livingentities […] Earth is a community of subjects and not a collection of objects’.76

To summarize, EJ takes as the central objective of its critique legal modernity’santhropocentrism, especially as it is reflected in the law of property and in the roleassigned to natural entities as ‘objects’. EJ makes an attempt at elaborating an eco-centric normative framework in which legal subjectivity is not the privilege of humansonly, nor a power to be exercised over natural entities as objects.

3.2 Law for Nature: an ‘objective’ strategy

Having given a necessarily brief account of Earth Jurisprudence, it is now time to turnto the second legal philosophical approach. Law for Nature77 is a framework devel-oped by the Italian legal philosopher, Mariachiara Tallacchini. It takes as its startingpoint what it defines as ecological normativity, the central aim of which is to suggestthat ecological knowledge is a necessary precondition for environmental law.78 Tallac-chini also discusses potential links with the tradition of Natural Law.79 However, she dis-tinguishes Natural Law from ecological normativity on the grounds that the formerestablishes a normative relation with morality, the latter with science.80 Accordingly,Tallacchini grounds the concept of ecological normativity on one fundamental element

71. Stone meant to address the question of legal standing (and the related ‘injury in fact’ test)within the context of Sierra Club v Morton (405 U.S. 727 (1972)), Stone 1985 (n 70) at 1–3.The US Supreme Court upheld the Ninth Circuit’s decision, which had found that the SierraClub ‘had not shown itself to be “adversely affected”, and was therefore not a proper plaintiff’,Stone 1985 (n 70) at 1.72. Berry 2006 (n 42) at 149.73. Ibid., at 110.74. Berry 2006 (n 42) at 111. But see also Stone 1985 (n 70) where he advocates for what hecalls ‘moral pluralism’, which ‘invites us to conceive moral activities as partitioned into several dis-tinct domains, each governed by distinct principles and logical texture’, Stone 1985 (n 70) at 9; andfurther, ‘[i]t makes no sense to accord a tree the right to sit on a jury, or to make a will. But surely atree could be the beneficiary of a will’, at 37–8.75. Filgueira and Mason (n 63) at 4.76. Burdon 2011a (n 42) at 91.77. ‘Diritto per la natura’ in the original, from M Tallacchini, Diritto per la Natura. Ecologiae Filosofia del Diritto (Giappichelli Editore, Torino 1996).78. Tallacchini (n 1) at 1089.79. See Tallacchini (n 77) at 248 et ff.80. Tallacchini (n 77) at 265.




which – far from being a given – must function as a guiding parameter against whichto measure the ‘adequacy of law’: survival.81 Within this framework, Tallacchini distin-guishes three dimensions of ecological normativity: the normativity of limits, the nor-mativity of uncertainty and the normativity of ecological forms.

3.2.1 The normativity of limits

While the idea of limits in relation to ecology and nature has been explored at length,particularly within the context of environmental ethics, economics and politicalscience,82 the significance of limits as regards the structure and philosophy of lawhas remained underexplored.83 Tallacchini wishes to re-centre law – as a system ofnorms and as the formal structure of social organization – around the idea of ecolo-gical limits by way of a functionalist interpretation of law:84 ‘[a]scribing survival thestatus of a defining condition of law’, submits Tallacchini, ‘is a [strong] conception ofnecessary content in law; one which provides environmental norms with a deep foun-dation, since it assumes that legislation, which ignores or voluntarily violates the goalof ecological protection (and survival), lack the full status of legal norms, since theycontradict a fundamental condition of legal normativity’.85 This ecological groundingprovides the parameter for evaluating legal norms, in terms of their content,86 throughthe (external) bio-functional principle of survival. In this manner, the ideas of ecolo-gical limits and the goal of human survival – at multiple scales – become centrallegitimizing conditions for environmental law.87

3.2.2 The normativity of uncertainty

The normativity of uncertainty is predicated on the crucial epistemic role that ignor-ance has acquired in post-modern accounts of society, where science can no longerprovide certainty as regards statements of facts or assessments of risks. In this

81. She quotes from Hans Jonas ‘[F]rom a legal theory point of view, the assumption of limitsto respect for the achievement of the human survival is not obvious, since survival, as a goalnormally implicit in all legal systems, until recent times has been taken for granted’, Tallacchini(n 1) at 1090.82. See, as just some seminal works, out of a large multi-disciplinary literature: N Georgescu-Roegen, The Entropy Law and the Economic Process (Harvard University Press, Cambridge,MA 1971); DH Meadows, DL Meadows, J Randers and WW Behrens, The Limits to Growth(Signet, New York 1972); H Daly, Toward a Steady-State Economy (WH Freeman, SanFrancisco 1973). More recently the concept of Planetary Boundaries has emerged, see J Rockström,W Steffen, K Noone, Å Persson, FS Chapin, III and E Lambin, TM Lenton, M Scheffer, C Folke,H Schellnhuber, B Nykvist, CA De Wit, T Hughes, S van der Leeuw, H Rodhe, S Sörlin,PK Snyder, R Costanza, U Svedin, M Falkenmark, L Karlberg, RW Corell, VJ Fabry, J Hansen,B Walker, D Liverman, K Richardson, P Crutzen, J Foley, ‘Planetary Boundaries: Exploring theSafe Operating Space for Humanity’ (2009) 14(2) Ecology and Society 32.83. Thus Tallacchini (n 1) at 1090: ‘the question of ecological limits has rarely been posed […] asa theoretical element in the definition of a legal system’. General limits are regularly discussed andoften legislated: to emissions, pollution, concentration, harvesting, extraction, etc. However, suchlimits are considered generally within the context of a strategy of containment, as discussed in Part 1of this article, rather than as a structural and legal philosophical question.84. Tallacchini (n 1) at 1090.85. Tallacchini (n 1) at 1091–2.86. And not only as to its form, i.e. as to whether a norm is valid.87. Tallacchini (n 1) at 1092.




sense ‘law is engaged with the responsibility to solve problems which science cannotdecide and that are linked to uncertain outcomes’.88 This situation is determined bya) the so-called pluralism de vérités89 and b) an endemic (and perhaps insuperable)uncertainty, given the complexity of non-linear and cross-scalar ecological processes.In such a context, it becomes especially clear that science cannot provide secure orneutral knowledge. In that sense, science is fully revealed to be ‘normative science’.90

This, in a certain sense, is not new: Knowledge and values are entangled on bothobjective and subjective grounds.91 Every decision then carries within it specificnormative, ethical and political commitments arising from both scientific andlegal processes.92 A key shift, however, is that ignorance itself becomes pregnantwith epistemic relevance, and must be explicitly considered to be an integral partof ecological knowledge, either as ‘risk’ or ‘uncertainty’. Under conditions ofrisk, decisions hinge upon questions of probabilistic calculations. In such cases,law must select one of a plurality of contending assessments and scenarios.Under conditions of uncertainty on the other hand, no probability can be assigned,and an event may be altogether unidentified in the knowledge space.93 Tallacchinirefuses, however, the Jonasian model of a ‘heuristics of fear’,94 as it would implythe wholesale abandonment of science for its failure to provide certain knowledge.95

She insists instead on the cognitive value of uncertainty, and on its technical andjuridical consequences.96 In this sense, she talks of a ‘scientific prudence’,97 char-acterized by a strong link between ignorance and law. The normativity of

88. Ibid., at 1095.89. S Gutwirth and E Naim-Gesbert, ‘Science et droit de l’environnement: réflexions pour lecadre conceptual du pluralism de vérités’ (1995) 34 Revue interdisciplinaire d'études juridiques 33.90. Ibid., at 61: ‘Le pluralisme de vérités montre bien que ce rôle absolu, extra-politique,extra-juridique et indiscutable accordé à la science et ses verities est inacceptable’. See also,on normative science, RT Lackey, ‘Appropriate Use of Ecosystem Health and NormativeScience in Ecological Policy’ in DJ Rapport, WL Lasley, DE Rolston, NO Nielsen, CO Qualsetand AB Damania , Managing for Healthy Ecosystems (CRC Press, Boca Raton 2002).91. Subjective biases may arise from personal biases; from social or cultural preferences;and/or from methodological choices which themselves carry an axiological dimension. Meth-odological operations such as extrapolation from one context to another ‘are never neutraland univocal, but are always influenced by values and goals’ Tallacchini (n 1) at 1096.See also KS Shrader-Frechette, Risk and Rationality: Philosophical Foundations for PopulistReforms (University of California Press, Berkeley 1991); and KS Shrader-Frechette, ‘Meth-odological Rules for Four Classes of Scientific Uncertainty’ in J Lemons, Scientific Uncer-tainty and Environmental Problem Solving (Blackwell, Oxford 1996) at 12–39.92. Tallacchini (n 1) at 1095.93. Tallacchini (n 1) at 1095. See also J Paterson, ‘The Precautionary Principle: Practical Rea-son, Regulatory Decision-Making and Judicial Review in the Context of Functional Differen-tiation’ in Philippopoulos-Mihalopoulos (n 15), where he also discusses a number of toolsavailable to science to delineate an event’s plausibility, and available to law to reach a reason-able response, at 88–9. It must be noted that uncertainty in Tallacchini’s framework corre-sponds with ignorance in Paterson’s.94. Tallacchini (n 77) at 280–82. Tallacchini refers to H Jonas, ‘The Heuristics of Fear’ inM Kranzberg (ed), Ethics in an Age of Pervasive Technology (Westview Press, Boulder, CO1980).95. Tallacchini (n 77) at 281.96. Not unlike Paterson (n 93).97. Tallacchini (n 77) at 282.




uncertainty has already found expression, with varying degrees of success, in thenow well-established precautionary principle.

3.2.3 The normativity of the ecological forms (Gestalt)

The normativity that emerges from an ecological Gestalt relates primarily to a modalshift in the understanding of reality – away from the atomistic towards the systemicand relational. This shift has significant effects on law, since legal notions convey‘a particular partitioning of the world’.98 Moreover, ‘[t]he relationship between theworld of natural objects and the world of legal objects is mediated, through language,by perceptions and representations of reality’.99 Accordingly, the relevance and sal-ience of various aspects of reality changes in accordance with the different ways inwhich reality is perceived, understood and organized cognitively, and consequently,legally. In other words, a shift in the perception of reality translates into a modifica-tion in how subsets of that reality are disentangled from the whole, and under whatconditions they are categorized as being objects and/or subjects, including by thelaw.100 Furthermore, a range of new elements and entities become ‘ecologically rele-vant’,101 and require a novel and appropriate legal translation. However, these ‘new’entities tend to elude easy accommodation within existing legal concepts and cate-gories, resisting – fully or partially – simplistic binaries and designations (such assubject-object), which reflect the categories of an atomistic, and dualist, perceptionof the world. A relational and systemic Gestalt instead invites the operation of adifferent – non-atomistic – gaze, even when, for analytical and other purposes, fore-grounding and isolating singular entities from the complex system(s) in relation towhich they participate.

This ‘metaphysics of the legal’ has clear and important implications for thealignment – or lack thereof – between law and ecology. When law imports andtranslates reality into its own specialized ontology and language, it operates accord-ing to a particular image of the world, or Gestalt. This is a particular ‘source of pro-blems in the legal translation of ecological entities’,102 because the relationalontology of the ecological Gestalt cannot be appropriately translated into a legalontology premised on a ‘sharp separation between subject and object’.103 Thisbecomes evident in the role of subjects and objects in law, and in property law inparticular, as ‘subject’ owners are theoretically endowed with full sovereignpower over the ‘object’ owned. Moreover, under existing property law, ecologicalwholes are disassembled into parts.

With regard to the legal translation of relational ontology through property law,Tallacchini points to the concept of common heritage as a way to better conceptualize,understand and represent in legal terms ‘the interconnections between subjects andobjects in ecological contexts’ by placing a strong emphasis on the ‘idea that the ben-eficiaries of a common good must be burdened with well-defined duties of preserva-tion toward posterity’104. This approach restricts the possibilities of exploitation

98. Tallacchini (n 1) at 1093.99. Smith 1997 as quoted in Tallacchini (n 1) at 1092.100. Tallacchini (n 1) at 1093.101. Tallacchini (n 77) at 326.102. Tallacchini (n 1) at 1094. We have seen how this is a major issue raised also by EJ.103. Tallacchini (n 1) at 1094.104. Ibid.




implied by private property constructions, and reduces the distance between subjectand object, as will be clarified in the next section.

3.2.4 The central elements of Law for Nature

The framework of ecological normativity delineated above operates as a platformupon which Tallacchini develops the central elements of her legal philosophy.First, because of the post-modern demise both of scientific certainties and of the cate-gorical distinction between fact and value, strong emphasis is placed upon the episte-mological and axiological dimension of a dialectical relationship between law andecological normativity. The values inhabiting nature are not understood ecocentrically(as EJ tries to do) but as the source of a transformative process enacted by way of areflexive encounter grounded in a so-called weak anthropocentric perspective.105 Lawbecomes a project, which through reflexive circularity constantly readjusts and reori-ents itself in accordance with new ecological situations and requirements. While sub-ject and object remain central legal concepts, reflexivity allows a process ofcontinuous redefinition to be established, so as iteratively to calibrate legal ontologyto the ecological Gestalt.106 Furthermore, both subject and object are integratedwithin a common legal context – that of common heritage – so as to mirror theirmutual ecological entanglement.107 Common heritage is derived from the conceptof patrimonium, understood as a set of legal relations having economic content andwhich refer to a particular legal subject. However, within the conceptual context ofpatrimonium the subject cannot properly take an external, dominative perspectiveon the object,108 since the subject does not own his patrimonium, but rather finds him-self at the centre of the multiplicity of the legal relations that constitute it. This pro-vides a template in which the subjective and objective dimensions are coextensive.Furthermore, patrimonium is, in a sense, ‘ultra-subjective’: the subject cannot alienateit in toto except mortis causa. The object however survives the extinction of the sub-ject, because the web of legal relations endures in connection with a new subject. Thisintroduces an intergenerational perspective, which is in fact a crucial element of theconcept of common heritage. The main advantage that Tallacchini sees in the conceptof patrimonium concerns, ultimately, its ability to reconcile the perspective of the sub-ject (and its ability to satisfy its needs through the use of the resources constituting thepatrimonium) and that of the object (through the limitations imposed on the subject bythe intergenerational perspective). Neither subject nor object assumes a dominantposition. From this notion of patrimonium, Tallacchini maintains, it is then possibleto elaborate a suitably ecological notion of common heritage.

Secondly, ecological normativity also translates into a measure of ‘necessary content’for law, to be iteratively negotiated through the aforementioned reflexive process.

105. Tallacchini (n 77) at 150 et ff. Weak anthropocentrism is a notion first developed byBryan Norton, see BG Norton, ‘Environmental Ethics and Weak Anthropocentrism’ (1984)6(2) Environmental Ethics 131.106. Tallacchini (n 77) at 304. See also Stone 1985 (n 70).107. A ‘common destiny’ says Tallacchini (n 77) at 365. Similarly also F Ost, La Nature Horsla Loi. L’Écologie á l’Éprove du Droit (La Découverte, Paris 2003).108. This is particularly true as regards the Roman origin of the concept, which Tallacchinitries to rescue. See Y Thomas, ‘Res, chose et patrimoine (Note sur le rapport sujet-objet endroit romain)’ (1980) 25 Archives de Philosophie du Droit 413, particularly at 422 and Ost(n 107).




This is the second pillar, which Tallacchini calls the ‘ecological minimum’.109 Thisminimum, which does not imply ‘minimal’ or ‘little’,110 requires survival to becomea fundamental, orientating value of law, an essential parameter to be used when eval-uating the adequacy and legitimacy of both particular laws and of the entire legal order.As such, it provides a limiting framework to the will of the legislator.

Finally, a precautionary attitude, understood, as we have seen above, as scientific pru-dence, acquires central importance. In particular, Tallacchini points to three articulationsof precaution, already present in many legal systems and in international law: environ-mental impact assessment; the principle of conservation (which encapsulates the notionof existence value) and the precautionary principle.111 As regards the latter specifically,Tallacchini insists on the role of prudence with regards to shifting the burden of proof,and to the prudential requirement of assigning more weight to a cautious scientificassessment when confronted with equally uncertain scientific predictions.

4 WHAT LEGAL PHILOSOPHY FOR AN ECOLOGICAL AGE?

In assessing the relative contribution of these two legal philosophies, perhaps the firstthing to note is that both manifest a turn towards Natural Law, at least in the sense ofextracting from nature specific normative force, and in configuring that as a set ofevaluative parameters for positive law. The Natural Law turn is decidedly strongerin EJ, and particularly in Burdon’s account, while Tallacchini articulates ecologicalnormativity in functional rather than in ethical terms. Notably moreover, both philo-sophies establish links with the classical tradition of Natural Law, rather than themodern, rationalist versions,112 thus significantly reducing the role of human willin the creation of law: norms and principles can be found in the ‘nature of things’,113

as objective reality is endowed with an immanent normative force. And while EJ’sprevailing articulations emphasize subjective rights, Berry’s fundamental rights mayalso be understood as an expression of an objective order, albeit articulated in thegrammar of the contemporary language of rights.114 Nature, in both accounts, is ima-gined as an objective order within which the inter-subjective dimension of the socialunfolds: An implicit juridical sphere envelops human beings in their relationship withnature regardless and independently of the inter-subjective juridical relationshipsexisting among human beings,115 drawing normativity from the ‘nature of things’.116

109. Drawing on Hart’s notion of ‘minimum content of natural law’ (HLA Hart, The Conceptof Law (Calendon Press, Oxford 1994, 2nd edn) at 193–9; Tallacchini (n 77) at 302ff.110. The minimum requirement of survival may hence translate into a large pool of ‘necessarycontent’ for law, Tallacchini (n 77) at 298.111. Tallacchini (n 77) at 305ff.112. On the distinction between the classical and the modern Natural Law tradition, see A PasserinD’Entreves, Natural Law: An Introduction to Legal Philosophy (Transaction Publishers, NewBrunswick 1994) and M Villey, La Formation de la Pensée Juridique Moderne (Quadrige –

Presses Universitaires de France, Paris 2003).113. See Villey (n 112) and Tallacchini (n 77).114. It will be remembered that Berry talks of rights specific to each entity, hence implyingsome measure of appropriateness, and, consequently, of right order.115. Thus Tallacchini (n 77) at 262 fn 37, drawing on Italian philosopher Benedetto Croce.116. See M Villey, ‘Law in Things’ in P Amselek and N MacCormick, Controversies AboutLaw’s Ontology (Edinburgh University Press, Edinburgh 1991). But in this sense see alsoBurdon (n 42) at 202ff.




This approach further configures the arbitrary exploitation of the natural world asbeing anti-juridical.117

Any framework which draws normativity from the nature of things however suf-fers from the ambiguities afflicting the idea of nature and other important ecologicalconcepts, such as ‘ecosystem’,118 ‘ecosystem health’119 and ‘ecosystem integrity’.120

This is particularly true if one accepts the idea that the concept of nature is sociallyconstructed, historically situated and politically negotiated.121 This ambiguity oper-ates in particular as an inevitable inner tension within EJ,122 and has been under-problematized by EJ advocates who have focused primarily on re-articulating thehumanity–nature relationship, rather than on exploring ‘the ontological and epistemo-logical issues associated with the idea of nature’.123 Tallacchini is perhaps less vulner-able to this critique to the extent that her framework links law and ecologyfunctionally (through the goal of survival) and dynamically (through the transforma-tive dialectic), and because she explicitly incorporates in her framework the contest-able nature of knowledge through the concept of pluralism de vérités.

EJ and Law for Nature also employ different legal strategies in order to organizethe new ecological worldview juridically. EJ is predominantly oriented towardsassigning legal subjectivity to nature. Law for Nature operates within an objectivelegal framework, hinging upon the notion of patrimonium. Such a notion, accordingto Tallacchini, allows a reframing of the paradigm of appropriation and is able to cap-ture the transformative dialectic between humanity and nature in adequate juridical

117. For example, Tallacchini (n 77); Burdon (n 42), particularly at 133–4.118. Ecosystem is indeed a controversial concept. For some reviews see FB Golley, A Historyof the Ecosystem Concept in Ecology: More than the Sum of its Parts (Yale University Press,New Haven 1993); C Eliot, ‘The Legend of Order and Chaos: Communities and Early Com-munity Ecology’, in K deLaplante, B Brown and A Peacock, Philosophy of Ecology: Handbookof the Philosophy of Science, Volume 11 (North Holland, Oxford 2010).119. For a literature review highlighting such ambiguities and conceptual problems, see Lackey(n 90).120. Some observe that ‘[c]alls for managing for […] ecological health or integrity […] shouldbe viewed like calls for freedom, equality, prosperity, and enlightenment – great for the cam-paign speech but not for serious analysis’, RT Lackey, ‘Ecosystem Management: In Search ofthe Elusive Paradigm’ (1997/1998) 4(2) Human Ecology Review 109. For a literature review ofthe ideological and policy implications of different notions of ecological integrity see S Fluker,‘Ecological Integrity in Canada’s National Parks: The False Promise of the Law’ (2010) 29Windsor Review of Legal and Social Issues 89, particularly at 92–9. For the ethical implicationsof the concept of integrity, see, ex pluribus, L Westra, An Environmental Proposal for Ethics:The Principle of Integrity (Rowman & Littlefield, Lanham 1994).121. See N Evernden, The Social Creation of Nature (The John Hopkins University Press,Baltimore 1992); and B Latour, The Politics of Nature: How to Bring the Sciences into Democ-racy (Harvard University Press, Cambridge MA 2004).122. Schillmoller and Pelizzon (n 54), emphasize for example how the problematic, ambiguousconcept of nature fuels a ‘problematic tension between the requirement of a concept of natureupon which to ground action, and an awareness of the impossibility of settling upon a definitiveversion of what nature is’, at 11.123. Schillmoller and Pelizzon (n 54) at 21 (emphasis theirs). It must be noted that EJ advo-cates are aware of these issues. Cullinan for example cautions that ‘[t]he diversity of nature andour limited knowledge of it allow ample scope for everyone from fascists to nihilists andbeyond to claim nature supports their theories’, C Cullinan, ‘Voices of Earth JurisprudenceAn Introduction To Earth Jurisprudence: Guiding Principles And Wild Law Possibilities’(Center for Earth Jurisprudence, Orlando 2011) at 5.




form, maintaining the balance between an anthropocentric perspective and ecologicalnormativity through the establishment of an insuperable link between subject andobject. The main advantage of this approach may reside in the fact that the conceptsof patrimonium and common heritage have a long history124 and are well establishedboth in domestic legal systems and in international law.125 However, the concept ofpatrimonium seems unable to decentre the dominance of the subject, which remainsthe crucial perspective. Subject and object remain ontologically autonomous andseparate, joint only within the specific context of a legal device whose contoursand rules remain inspired by patrimonial – that is, economic – considerations. More-over, even the alleged ‘ultra-subjectivity’ mentioned above may be better explained interms of intergenerational subjectivity, or in other words, in terms of a succession ofhuman subjects. The concept of patrimonium offers perhaps its most significant con-tribution as regards the intergenerational perspective, expanding the temporal scope ofthe legal imagination beyond a human lifetime. The protection of the interests of thenatural world – consistent with an anthropocentric perspective – remains indirect andinstrumental.

The rights of nature approach of EJ however also presents a number of problems.Tallacchini deals explicitly with some of these, thus providing a useful starting pointfor the discussion here. The key difference between the two legal philosophies is theway in which law becomes operative and significant.126 Within an objective law fra-mework, law operates as an organizational and structuring force attempting to harmo-nize potentially conflicting positions beforehand, so that the individual positions areframed within objective canons of right conduct. By contrast, in the case of a rightsapproach, law carves an abstract legitimate space for all subjective rights, emphasiz-ing the different individual perspectives qua individuals, leaving the right conduct tobe ascertained episodically through concrete conflicts.127

From this key difference, Tallacchini draws a series of ‘sub-differences’. First, theidea of community: the primacy of the ‘totality over the parts’ characterizes objectivenatural law. Natural rights, by contrast, are traditionally founded upon a reductionistidea of community, where the parts – the individual subjects – are primary, and aggre-gated into a community only secondarily, thus underlining their original indepen-dence. However, the EJ notion of the Earth community as a community of subjectsis not intended as an aggregation of independent subjects. In Burdon’s account,even human beings are understood – at least at some level – as being part of a networkof relationships and as interconnected members of the larger Earth community.128

Nevertheless, there is an implicit, arguably inherent, tension between the notion ofEarth community as a network of interdependent entities – as a web of relationships –and the idea of a community of subjects, of individual rights bearers qua atomistic

124. See Thomas (n 108).125. Common heritage is the principle governing the legal regime of the seabed (art. 136UNCLOS) and the Moon (art. 11 Moon Treaty). See also the UNESCO World Heritage Con-vention and the UNESCO Declaration on the Responsibilities of the Present Generationstowards Future Generations.126. Tallacchini (n 77) at 257ff.127. Which is not to say that conflicts do not inevitably arise within an objective law frame-work, but only that right conduct is more clearly established beforehand, Tallacchini (n 77) at257–9. See also Villey (n 112).128. See for example Burdon 2011a (n 42) at 102. Burdon 2011a (n 42) at 104–5, explicitlyrefers to the concept of Holon, something that is ‘simultaneously a whole and a part’. For alonger description of the concept of Holon and for further references see ibid. at 104–5.




subjects: the ‘new story’ Berry intended to tell, and that Burdon attempts to follow,129

remains perhaps too entangled in an old story of modern, individual rights. In fact,the genealogy of subjective rights, and its relation to the paradigm of dominium, speaksof a process of isolation and abstraction of the subject from the web of relationshipswithin which it exists and through which it is constituted.130

Because of this lingering legacy, a subjective rights grid may resist the ecologicalrelational-systemic Gestalt. Moreover, the mere attribution of a subjective right mayhave unintended consequences.131 To the extent that rights maintain a set of theore-tical and metaphorical characteristics – a specific individualist and appropriativegrammar – they may condition the underlying relationships they intend to regulatein ways that may run contrary to the objectives pursued through the attribution ofrights. The conceptual atomism of the rights-based approach fits relationships pre-mised on equality, symmetry, autonomy and freedom,132 central elements of modernmoral and legal philosophy. The approach seems thus maladapted to relationships ofan entirely different kind, such as those between particular, complementary, unequal,vulnerable entities: human and non-human, living and non-living. And even if rightsare understood and imagined as being a qualitative kind, each constructed like a tailor-made dress sewn to fit the diversity of situations – as Berry says, rivers have riverrights, birds have bird rights etc. – conceptualizing such situations in terms of subjec-tive rights may establish a pattern of legal relations premised on a zero sum game. Inthis regard, for example, Elizabeth Wolgast warns against what she calls ‘wrongrights’, whose ‘conceptual grid’, ‘schema’ and ‘language’, ‘[bind] us, stereotypingour reasoning’.133 Indeed, Wolgast emphasizes how the language of rights is builtaround a grammar of possession (a right is something which is possessed orowned)134 and agency (rights are there to be claimed or waived), which de-emphasizesthe role of obligation and duty and assumes the capacity of the right-bearer to exerciseher rights – an assumption which is not always warranted.135

129. ‘It is all a question of story. We are in trouble now because we do not have a good story.We are in between stories. The old story, the account of how the world came to be and how wefit into it, is no longer effective. Yet we have not learned a new story’, T Berry, Dream of theEarth (Sierra Club, San Francisco 1988) at 123, as quoted in Burdon 2011a (n 42) at 116. Seealso Burdon 2010 (n 42) at 116 et ff.130. See P Grossi, ‘Usus facti – La nozione di proprietà nella inaugurazione dell’età nuova’(1972) 1 Quaderni Fiorentini per la Storia del Pensiero Giuridico Moderno 287; and P Grossi,L’Europa del Diritto (Laterza, Bari 2011).131. Tallacchini (n 77) at 337 talks, in this respect, of a ‘field effect’.132. Thus Tallacchini (n 77) at 337, drawing on the work of Elizabeth Wolgast, and particu-larly E Wolgast, The Grammar Of Justice (Cornell University Press, Ithaca, NY 1987a); seealso E Wolgast, ‘Wrong Rights’ (1987b) 2(1) Hypatia 25.133. Wolgast 1987b (n 132).134. Dominium indeed provides the grammar for subjective rights, insofar as ‘[r]ights are typi-cally conceived of as possessed or owned or belonging to individuals’, HLA Hart, ‘Are ThereAny Natural Rights?’ (1955) 64 The Philosophical Review 175 at 182 (emphasis in the origi-nal); see also Tallacchini (n 78); Grossi 1972 (n 130); M Villey, Le Droit et les Droits del’Homme (Presses Universitaires de France, Paris 2008). But see also A Grear, ‘Human Rights,Property and the Search for “Worlds Other”’ (2012) 3(2) Journal of Human Rights and Envir-onment 173, cautioning against assuming a univocal relationship between individual (human)rights and property paradigms.135. Wolgast 1987b (n 132) at 25. Wolgast uses the example of a patient-doctor situation, inwhich a patient ‘is in no position to exercise such rights. He may be in pain or drugged through




Furthermore, some ecofeminists underline how the very idea of ‘rights of nature’mirrors masculine preferences for a social space comprised of competing individuals.Such theorists raise various objections related to this – for example: The argument thatwomen ‘reject the idea of an isolated, atomistic and competitive ego so dear to themale heart. They also shy away from that staple of the liberal credo, individualrights’;136 that, from a holistic perspective ‘it would make no more sense to assertthe rights of […] trees or animals against humans than it does to claim that theheart has rights in its relationships with the bloodstream or lungs’.137 These objectionsand questions imply critical puzzles as yet unanswered by rights of natureapproaches.138

A further puzzle is implicated in the relationship between dominium and subjectiverights, which is also relevant in relation to Burdon’s attempted EJ reconceptualizationof private property. His careful discussion aims at giving private property ‘radicallynew content’,139 albeit remaining within a ‘reformist agenda’.140 Burdon in fact dis-tances himself from those EJ advocates who expressly consider the very institution ofprivate property to be incompatible with an ecocentric paradigm:141 Burdon’s theore-tical effort ‘does not seek to remove private property as an organising idea [but rather]seeks to give private property radically new content’.142

While a thorough analysis of Burdon’s ecocentric theory of private propertyexceeds the scope of this article, it seems that this stance may also prove proble-matic.143 By insisting on the transformation (and therefore the continuance) of privateproperty Burdon seems to remain within the genealogical paradigm of dominium,whose philosophical legacy may continue to linger, if only as an organizing idea.Yet dominium is largely incompatible with an ecological Gestalt. Dominium is pre-mised on a fundamentally individualistic, appropriative and voluntaristic apprehen-sion of the world, of nature, of things. Furthermore, it is problematically inscribed,as noted earlier, in the tacit frame of reference (the worldview) of western modernityand in the very grammar of law currently restraining the progress of environmentallaw as a mode of response to complex ecological realities. Dominium may remain,in other words, and despite Burdon’s attempted reformulation of private property, acentral category for the organization of reality and for the (legal) imagination of rela-tions between humans and the non-human world. Accordingly, it is the entire conceptof private property as an organizing category that ought to be challenged rather thanmerely the conditions of its legitimate form and exercise.144 Indeed private property is

medication, frightened about his future and dependent upon others. Who is he to complain? Togive him rights puts him in the role of an assertive and able individual, but this is inconsistentwith his being ill’, at 29.136. Ariel Salleh, quoted in R Nash, The Rights of Nature: A History of Environmental Ethics(The University of Winsconsin Press, Madison, WI 1989) at 146.137. Nash (n 136) at 146.138. It must be noted however that EJ scholars tend to deploy the category of rights only inrelations between humanity and nature, see for example Burdon 2011a (n 42).139. Burdon 2011a (n 42) at 173.140. Burdon 2011a (n 42) at 173.141. Such as Cullinan, Linzey and Fitz-Henry, Burdon 2011a (n 42) at 175, particularly footnote 3.142. Burdon 2011a (n 42) at 175.143. At least prima facie, and to the eye of someone writing from the perspective of the civillaw tradition.144. Burdon is aware of this issue, and of the crucial distinction between negative limitations toprivate property, which may be compressed by legislation or contract, but which remains




arguably one of the ‘archetypical’ foundations of legal modernity,145 and there exist anumber of subjugated, counter-hegemonic concepts of property relations, radicallyopposed to the fragmentation and individual ownership of nature, which may providea more suitable philosophical framework for an ecological juridical theory146 – andpossibilities more consistent with Burdon’s ultimate EJ goals.147

Another potentially vexing question as regards rights of nature approaches has todo with the mapping of subjective rights with moral agency. It should be noted, how-ever, that the notion of subjective right does not require that it be necessarily mappedonto the philosophical notion of sentient beings.148 Assigning subjective rights tonon-human entities may simply serve the functional-pragmatic purpose of attributingstrong legal protection to the entity in question, without an implicit (and perhaps pro-blematic), attribution of moral subjectivity. Stone, for example, has observed that it isa mistake to imagine that each legal right must be mapped onto an underlying moralright.149 This view is shared by Emmenegger and Tschentscher, who argue that‘the concept of “rights” is instrumental, i.e., it is merely a legal and moral instrumentof protection’.150 Hence ‘whatever entity needs protection which can best be given inthe form of a right will have the capacity to have rights’.151 Emmenegger andTschentscher argue that between the two options of ‘duties of man towards nature’and ‘original rights of nature’, the latter is to be preferred,152 for two reasons. First,rights are the best way to give legal manifestation to the notion of the inherentvalue of nature. Secondly, ‘nature’s rights approach offers a more suitable rationale

elastic, and re-expands when such limitations are lifted, and positive re-formulation of the entireconcept of property, so that obligations, responsibilities and limitations becomes internalized asits constitutive and legitimating elements, see Burdon 2011a (n 42) at 185.145. Together with the State, see U Mattei, ‘The State, the Market, and some PreliminaryQuestion about the Commons’(French and English Version, 2011), available at <http://works.bepress.com/ugo_mattei/40>.146. I am referring to communitarian and common forms of property, as distinct from both pri-vate and public property. Given space constraints, I can only provide some references, and post-pone discussion to another occasion. See, among others P Grossi, Un Altro Modo di Possedere.L’emersione di Forme Alternative di Proprietà alla Coscienza Postunitaria (Giuffré, Milano1977); A Negri and M Hardt, Commonwealth (Harvard University Press, Cambridge MA2010); Mattei (n 145); U Mattei, Beni comuni. Un Manifesto (IlManifestoLibri, Roma2011); MR Marella (ed), Oltre il Pubblico e il Privato. Per un Diritto dei Beni Comuni(Ombre Corte, Verona 2012); AS Chignola, Il diritto del commune. Crisi della sovranià, pro-prietà e nuovi poteri costituenti (Ombre Corte, Verona 2012); BH Weston and D Bollier,Green Governance: Ecological Survival, Human Rights and the Law of the Commons(Cambridge University Press, New York 2013).147. Burdon’s theoretical framework can be summarized in three points: private property is asocial relationship, and ‘property rights ought to be contingent on their impact on others withinthe community’, Burdon 2011a (n 42) at 174; private property is premised on nonreciprocalobligations and responsibilities, thus incorporating an intrinsic ethical dimension; the ‘thing’upon which a private property relationship is established should (re-)acquire specific normativeimportance (importance obliterated by Hohfeld’s concept of property); see Burdon 2011a(n 42), ch 5.148. See C Grzegorczyck, ‘Le sujet de droit: trois hypostases’ (1989) 34 Archives de Philosophiedu Droit 9.149. Stone 1985 (n 86) at 23.150. Emmenegger and Tschentscher (n 19) at 574.151. Ibid., at 575.152. Ibid., at 572.




http://works.bepress.com/ugo_mattei/40

http://works.bepress.com/ugo_mattei/40

for the development in international environmental law’, particularly as ‘rights grantgeneralized legal competence, [and] are open-ended, whereas duties are broken downinto specific rules of limited scope’.153 The authors go on to underpin their preferencefor the general idea that a rights of nature approach necessarily entails an ecocentric shift,whereby ‘the duties concept continues to revolve around humans’.154 As Schillmollerand Pelizzon suggest, in such an approach, it is not a question of rights of nature,but rather of rights for nature.155

Even taking this pragmatic position however, the over-proliferation of subjectiverights and of legal subjects that may result from a rights-of-nature approach carriesthe risk of a devalorization of both rights and rights-subjects, to the extent thatthey may either remain largely symbolic in an overcrowded legal space, or mayremain trapped in a largely adversarial and contingent framework, disjointed fromany comprehensive idea of a common good.156

A further problematic aspect is that a strategy of rights presupposes a State-centricpolitical, legal and institutional architecture. State-centric institutional architecture canbe read in two ways. The first is optimistic and strategic: Since States exist, one mustfind the best strategy to reach the goal of protecting nature through employing Stateapparatuses, particularly legislation and the judicial enforcement of rights.157 The sec-ond is pessimistic and counter-hegemonic, and dovetails with the critique of privateproperty offered above: utilizing State apparatuses reinforces their role – political andlegal – and further legitimizes the entire scaffolding of modernity, especially since‘[p]rivate property and the State are the two major legal and political institutionsthat carry … the dominant view of the world’,158 the eco-destructive view which isanthropocentric, appropriative and reductionist.

In fact, both the State and private property represent ‘archetypes’ of legal mod-ernity, and while they are frequently presented as radically conflicting, they actuallystand in a relationship that is symbiotic. Their opposition is ‘fabricated’ and is a‘precise ideological choice of the individualistic tradition […] Both archetypesare inserted into a fundamental structure: the rule of a subject (an individual, a com-pany, the government) over an object (a private good, an organization, aterritory)’.159 At root, then, rights-based strategies fail – in the final analysis – totranscend the fundamental commitments of the legal modernism so thoroughlyimplicated in ecological destruction and in the closely related limitations of currentenvironmental law.

153. Ibid., at 573.154. Ibid., at 573.155. They argue that ‘the concept of rights is a juridical one and not one which inheres innature’, Schillmoller and Pelizzon (n 54) at 23.156. See Villey (n 134) and Ost (n 107) at 189–90; See also BP Taylor, ‘Environmental Ethicsand Political Theory’ (1991) 23 Polity 567.157. Indeed, in a recent presentation held in occasion of the Conference ‘The Rule of Law forNature’, held in Oslo on 9–11 May 2012, Cullinan stated that the ‘language of rights is useful inorder to use the State machinery to protect nature’, personal annotation.158. Mattei (n 145). Others also emphasize how ‘there is no modern society without privateproperty’, C Camardi, Le Istituzioni del Diritto Privato Contemporaneo (Jovene, Napoli2010) at 134, my translation. A similar assertion can be made as regards the sovereign State,shifting from a private to a public legal perspective.159. Mattei (n 145).




5 CONCLUSIONS AND A CLOSING REFLECTION

EJ and Law for Nature both provide important contributions towards an ecologicalgrounding of law. They both identify the fundamental problems of legal modernityin the Cartesian separation of the mind/subject from subjugated matter/object; theBaconian epistemology of mastery; the role of property as the central legal interpreta-tion and apprehension of reality. Both have tried to move past these modern cate-gories by anchoring their reasoning on a new ecological Gestalt, a new systemicand relational understanding of reality. However, the perspectives taken are different,both as regards their ethical framework and as regards their legal strategy.

Turning first to consider its ethical framework, EJ is clearly oriented towards anecocentric ethics. EJ strongly opposes any consideration of nature as an object devoidof moral or axiological dimensions. Both Burdon and Cullinan lament the perceptionof nature as mere res extensa and the legal interpretation of nature in terms of propertyrelations.160 Such a construction and perception of nature is considered by them to bethe fundamental premise for the appropriation and exploitation of nature. Understand-ing nature as a community of subjects reverses this narrative, and emphasizes howhumanity and the non-human world belong to the same moral order. The legal systemshould accordingly assume an ecocentric stance.

In terms of its ethical framework, Law for Nature, by contrast, maintains a weakanthropocentric position, wherein humans occupy a central place, but one limited andoriented by objective limits and by the inherent ‘demands’ of natural objects, capturedthrough a transformative relation between humanity and nature. Anthropocentrism,however, points both etymologically and conceptually to the centrality of humanity,in the sense of entailing the ‘unjustified privileging of human beings […] at theexpense of other forms of life’.161 Accordingly, it might be more appropriate to under-score the inevitability of a human perspective, rather than an anthropocentric one. AsCurry observes, authors who subscribe to the inevitability of anthropocentrism makethe ‘common mistake of inferring that values must be anthropocentric […] from thefact that when humans are the valuers […] those values are indeed necessarily anthro-pogenic’.162 An ethical framework responsive to perspectival language sensitive tothe role of human beings as valuers could insist upon the situated participation ofhumans within a whole that has no privileged centre, but rather a plurality of perspec-tives. It should be noted, in this light, that ‘ecocentrism’ may also prove problematic,because it risks filling the role of an opposite yet analytically-dependent complementto anthropocentrism, simply reversing the focus, but maintaining a one-sided‘centrism’ at either pole of an oppositional anthropocentric–ecocentric binary.

Turning now to the question of legal strategy, EJ embraces a subjective, naturalrights approach (the three basic rights arise with existence).163 This is an approachmitigated by positioning it within the objective framework of the Earth community.However, the contents of such a framework – and the very notion of nature deployedin EJ analysis – remain under-problematized, as noted above. Moreover, a rights ofnature approach is faced with a number of challenges, some of which have also

160. Burdon 2011a (n 42) at 43–88; Cullinan (n 42).161. P Curry, Ecological Ethics: An Introduction (Polity, Cambridge 2011, 2nd edn) at 55.162. P Curry, ‘Nature Post-Nature’ (2008) 26 New Formations 51 at 54 (emphasis in theoriginal).163. At least in its prevailing understanding, which has been the one taken as the object of thediscussion in this article. For different orientations within EJ, see n 69.




been discussed above. Tallacchini, in her Law for Nature approach, chooses a differ-ent legal route, identifying the concept of patrimonium as the concept able to capturein juridical form the principles of ecological normativity she outlines. As we haveseen however, this device also presents a number of problems.

What, then, might answer the problems identified here? Is there a way of deployingkey insights from EJ and Law for Nature while avoiding their weaknesses? Arguably,there is at least a mode of practice that may point a way forward, consistent with theepistemic value of ignorance and entirely consistent with a functional-pragmaticapproach that I want to offer by way of a closing reflection – the doctrine of ‘skilfulmeans’.

The doctrine of ‘skilful means’ reflects a deep Buddhist, East Asian, sensibilitytowards practice and context164 in the light of which one should ‘approach peoplein a way sensitive to their current self-understanding’.165 This remark is very closeto Cullinan’s functional-pragmatic approach, and represents a response intimatelyattuned to the practical realities of a situation. Skilful means approaches require sen-sitivity to the situation in light of the belief that there cannot be one practice appro-priate to all circumstances – material and/or cultural.166 This position recognizes thatattachment to a ‘way’ of addressing anything can become a limit on flexible, resour-ceful response. Thus Buddha invites his disciples to abandon his teaching as soon as itmay hinder, rather than help, their own enlightenment.167 Buddha’s teaching – even inhis own eyes – is constructed as a tool to be discarded when it has exhausted itsusefulness.

Reflecting upon the implications of the discussion in this article through the lens of‘skilful means’, suggests the possibility of deploying a strategy of rights as but onestrategy for a particular time and context – as a form of contingent ‘means’. Whateverits problems, a rights-based approach holds out the power of its reticulation with thecontext of the State,168 and its persuasive political currency within the dominatingcontext of liberal philosophy, politics and law. A rights-based approach may alsohelp resonate with, and facilitate, cultural change in other areas of the social space,as Stone and Bosselmann both argue.169 Minimally, despite its non-ideal nature,and despite the danger, noted above, that the strategy of rights may reinforce thevery worldview that is seen as being the origin of the unfolding ecological crises,there is a clear need for action now – and the rights-based approach offers one

164. J Schroeder, ‘Nagarjuna and the Doctrine of “Skillful Means”’ (2000) 50(4) PhilosophyEast & West 559 at 560.165. M Zimmerman, ‘The Critique of Natural Rights and the Search for a Non-AnthropocentricBasis for Moral Behavior’ (1985) 19(1) Journal of Value Inquiry 43 at 50.166. ‘[I]t is a mistake to think there is only one medicinal practice for all sentient beings’,Schroeder (n 164) at 562.167. ‘If you cling to it, if you fondle it, if you treasure it, if you are attached to it […] then youdo not understand that the teaching is similar to a raft, which is for crossing over, and not forgetting hold of’, quoted in Schroeder (n 164) at 562.168. As is emerging, for example, in Bolivia (which has passed legislation enshrining rights ofnature) and Ecuador (where legally enforceable rights of nature have been enshrined in the 2008Constitution, articles 71–4). Moreover, in Ecuador there has been at least one court case decidedon the basis of said Constitutional provisions. The case was decided in favour of nature (seeNaturaleza contra el Gobierno Provincial de Loja, Acción de Protección No. 11121-2011-0010).169. Stone (n 70); Bosselmann (n 69). But see C Giagnocavo and H Goldstein, ‘Law Reformor World Reform’ (1989–1990) 18 McGill Law Journal 345, which argues the opposite.




particularly ascendant global language for the reformulation of legal responses. Couldit be, then, that the strategy of rights of nature might be framed as a mode of utilizing‘skilful’ opportunities for detecting and strategically utilizing cracks and fracturepoints from within?170 Might a rights-based approach carry within it the seeds ofan incrementalist mode of resistance to the current paradigm, but precisely becauseit utilizes core categories of reference bearing ambivalent implications? Is it possible,in other words, to see a rights-based approach (with Grear) as itself constituting aspace of contestation rich with productive uncertainty – a space of productive ambiva-lence?171 In such a light, the approach, rather than being mistakenly seen as a para-digm shift, should perhaps be conceptualized as a form of internal resistance and as astrategy, one that may need to be discarded as soon as it becomes a hindrance. Suchan understanding arguably keeps alive the important tension between practical actionand radical cultural change – which is the level and kind of change essential for adeep, long-term shift of our cultural vision and of our juridical forms.

Radical change is a process requiring time. It never has, in any case, the benefit ofa ‘start from scratch’.172 While it is clear from the analysis offered above that a rights-based approach, even if suitably adjusted, carries the risk of being exactly the sort of‘reformist agenda’ which may pre-empt more radical, long-lasting change,173 refor-mulating such an approach as being an unsettled space receptive to ‘skilful means’may ultimately point us towards the skilful balancing of the temporal and strategichorizons implicated in the differences between contemporary environmental lawand the alternative visions of EJ and Law for Nature approaches.

170. On the opportunities that emancipatory readings of a rights-based approach may presentsee Grear (n 2) and Grear (n 134).171. Grear (n 134).172. See HJ Berman, Law and Revolution: The Formation of the Western Legal Tradition(Harvard University Press, Cambridge MA 1993) particularly at 20; see also Grossi (n 130).173. Thus also Giagnocavo and Goldstein (n 169), who view a rights approach as a mere quicklegal fix, hindering more comprehensive and radical change.




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