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The Emergence of Earth Jurisprudence

By: Stephan Harding and Hal White

It is now over a year since the most recent update of the landmark study that made a comprehensive scientific argument for the recognition of planetary boundaries (Rockstrom, Science. 16th January 2015).  These boundaries, it was suggested, are based upon critical ecological thresholds and should be used to define a safe operating space for humanity. As the planet continues to be buffeted by ecological challenges ranging from the unprecedented oil disaster in the Gulf of Mexico to climate change and the current mass extinctions of species, it is imperative that the wider global community turns its attention to the scientific assertion that there are at least nine planetary boundaries, four of which have already been transgressed (loss of biosphere integrity, land system change, climate change, and phosphorus and nitrogen enrichment).  Though the study has received wide attention within the scientific community, only now are its implications beginning to percolate into the critical interfaces between science and our global systems of public policy and jurisprudence. 

One such interface is marked by the perception, now virtually beyond dispute, that our industrialized and increasingly globalized culture is vastly destructive of nature. Sadly, despite this recognition there is still no generally agreed set of legal or economic principles, nor indeed any coherent global jurisprudential framework for addressing this destruction and the hugely destabilising transgression of planetary boundaries that results from it.

A key area that is in urgent need of remedial action is our jurisprudence, (namely, our legal and economic system), which, as it now stands, has aided and abetted the demolition of the natural world by elevating the rights of  industrial corporations over and above those of  the natural world and  individual human persons. Our laws have at their core the Enlightenment notion that we humans live within a universe that is nothing more than a mere machine full of ‘resources,’ which we can exploit as and when we like, without let or hindrance.  Our jurisprudence has been carefully crafted to give us unbridled freedom to exploit these supposedly dead resources for the exclusive benefit of our own species without regard to the true ecological and social costs of doing so. 

This lack of a wide-ranging legal framework for the protection of nature, both nationally and internationally, has led to an urgent call for an entirely new field of jurisprudence, which is coming to be known as ‘Earth Jurisprudence’, a term first coined by the late Father Thomas Berry, for many years Professor of History and Cultural Anthropology at Fordham University. Recently, Earth Jurisprudence has been forcefully and comprehensively taken up in a study conducted for the United Kingdom Environmental Law Association (UKELA) and the Gaia Foundation in courses and studies conducted at Schumacher College in Devon and by the new Center for Earth Jurisprudence in Florida, which is jointly affiliated with the colleges of law at Barry University in Orlando and at St. Thomas University in Miami. The Gaia Foundation in London has also recently established an Earth Jurisprudence Resource Center, directed by barrister Ian Mason, former Principal and Head of Law and Economics in the School of Economic Science in London.

Central to this new field of Earth Jurisprudence is the view of South African lawyer Cormac Cullinan who in his seminal book, Wild Law: A Manifesto for Earth Justice  asserts that the notion of rights that accrue to human beings can be usefully applied to non-human species, ecosystems and indeed to the entire Earth as a way of approaching the legal recognition of the kinds of planetary boundaries set forth by  Rockstrom, the transgression of which also are implicit in other studies, such as the Millennium Ecosystem Assessment.

To some small extent a precedent for an Earth Jurisprudence already exists  in the Endangered Species Act of the United States which is  based upon the premise that individual species have an intrinsic right to live and flourish. This right establishes boundaries that are species specific, but  that are therefore  insufficient for maintaining healthy levels of global biodiversity, particularly with reference to the kinds of planetary boundaries set forth by  Rockstrom, but it is a start.

One way of developing Earth Jusriprudence would be to expand the concept of trespass that is so deeply and so necessarily embedded in the legal traditions of most cultures. At the moment trespass refers only to human boundaries, both tangible and intangible, which persons and communities have the right to protect in order to ensure their health, survival and dignity. Earth Jurisprudence asserts that individual organisms, species, ecosystems, and indeed the entire Earth, can and should also be construed as legal ‘persons’ with rights to protection from any trespass that would threaten their integrity whenever their  critical boundary conditions are transgressed.

There are several  credible scientific grounds for justifying the idea that nature and natural systems have rights equivalent to those of human persons. One is James Lovelock’s Gaia theory, which suggests that the Earth is a life-like, self-regulating  complex system that has actively maintained  habitable conditions on its  surface  over geological time  due to tightly coupled feedbacks between biota, rocks, atmosphere and water.  Just as the rights of persons are accorded to human corporations in the legal system of the United States, so does Earth Jurisprudence recognize that all rights, including human rights, flow from the capacity of Gaia - planet Earth as a global ecological system to sustain its health and well being through its own emergent creativity, biological diversity and material complexity.  In essence, Earth Jurisprudence recognizes the fact that the whole of nature is a corporation or a ‘great body’ that functions efficiently only when each component contributes to the overall long-range coherence of the whole.

The early development of Space Law and Space Jurisprudence provides a cogent analogy for the potential development of a comprehensive Earth Jurisprudence, because it demonstrates the possibility for the rapid creation of a whole new field of jurisprudence for regulating our activities within a new domain, namely outer space.  Within six years of Sputnik, for example, the United Nations set forth, on 13 December 1963, a “Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space.” Within nine years of that declaration an entire international legal edifice had been created to develop and help assure faithful compliance with those principles.

Similarly, Earth Jurisprudence concerns itself with the regulation of human conduct with respect to a newly ‘discovered’ or realized domain of even more  immediate importance than space itself, namely the domain of Gaia. This perception has already led to the development of an Earth Charter and of a Universal Declaration of Planetary Rights. The idea of the Earth Charter originated in 1987, when the United Nations’ Commission on Environment and Development called for  a charter to guide the transition to sustainable development. In 1992, the need for such a charter was urged by then Secretary-General Boutros Boutros-Ghali at the Rio Earth Summit. Just last year, the Peoples Summit on Climate Change in Bolivia reiterated its support for a proposed “Universal Declaration of the Rights of Mother Earth”. Admittedly, the protection of ecosystem and planetary boundaries in law and public policy will be a difficult and controversial endeavour. In practice, it would mean that development projects could not take place without considering the boundaries and rights of other living beings, species, rivers, mountains, and entire ecosystems in sustaining their health, integrity and existence.  Many approaches are possible, and the innovations of Earth Jurisprudence may range from the monetary valuation of ecosystem services to the development of  schemes for limiting carbon emissions, to cases that would be tried in conventional courts of law for the transgression of boundaries. In these courts, evidence would be heard from those best placed to represent the rights of other-than-human persons including not only the scientists in the best position to define particular ecological thresholds, but also those human beings who have lived in profound personal connection to the specific localities in question: indigenous people and lovers of the wild such as the legendary Scottish-American, John Muir. 

The recognition of planetary boundaries by scientists and the calls for a new Earth Jurisprudence by ecological scholars and jurisprudents are telling us that our own health, well being and survival as individual persons, communities, and indeed as a species may well be at stake if we do not first consider the health and well-being of the natural planetary system from which we sprang and of which we are an integral part. It must be understood that the Earth has no particular obligations towards us, but that it seems to possess an innate cybernetic tendency  to maintain its own system-level  integrity, if necessary by curtailing the activities of any errant species such as ourselves. We risk ‘biocide’ or ‘ecocide’ if we ignore this reality.

Cullinan and other proponents of Earth Jurisprudence suggest that changing our understanding of the purpose of human governance systems is of central importance if we are to avoid such a fate.  Is it correct, they ask, that we should continue to govern so as to maximize human freedom to exploit the Earth, intervening only (or primarily) when that use threatens or undermines the rights of other humans?  We think not, for the survival of our civilization depends upon us learning to govern ourselves so that we can at last find our fruitful and rightful place within the great web of life, a task that Thomas Berry called ‘The Great Work.’

Dr Stephan Harding is Coordinator of the MSc in Holistic Science at Schumacher College in Devon, UK.  He is the author of Animate Earth: Science, Intuition and Gaia, published by Green Books.

Dr Hal White is Professor of Ethics, Law and Policy and former Executive Vice President at the University of West Florida in Pensacola, Florida, and was Visiting Fellow in Earth Jurisprudence at Schumacher College. He is co-author of Envoys of Mankind: A Declaration of First Principles for the Governance of Space Societies, published by the Smithsonian Institution Press.”