Abstract
Legal philosophers and environmental activists concerned with transforming the human–Earth relationship typically focus on expanding the community of legal subjects to include the non-human. The limited success of this strategy prompts consideration of an alternative: expanding the concept of the human legal subject to facilitate mutually beneficial human–Earth relations. The abstract character of the rational autonomous individual normalises the pursuit of the individual life project with devastating consequences for the earth. The Cosmic Person introduced here is a Universe-centred, Earth-embedded multi-dimensional self that normalises an interest in the project of life itself.
Keywords
What rights and law actually do, right now, is structure relations, which, in turn, promote or undermine core values …
1
Every component of the Earth community, both living and nonliving, has three rights: the right to be, the right to habitat or place to be, and the right to fulfill its role in the ever-renewing processes of the Earth community.
4
Efforts to recognise the rights of nature and expand the community of legal subjects to include nonhuman beings have not been the exclusive purview of Earth Jurisprudence, of course. Legal inclusion of or accounting for non-human entities and life-worlds has long been a feature of environmental law and ethics. Carolyn Merchant surveys a number of these efforts, including such highlights as the work of Peter Singer and Tom Regan to ‘extend the pleasure-pain principle of Bentham and Mill to animals’; 7 Aldo Leopold’s ‘land ethic’ which ‘enlarges the bounds of the community to include “soils, waters, plants, and animals, or collectively, the land”’; 8 and Roderick Nash’s elaboration on the land ethic to advocate that rocks be assigned interests, arguing that ‘rocks, just like people, do have rights in and of themselves.’ 9 Many readers of this article will also be familiar with Christopher Stone’s influential query as to whether trees should have standing. 10
These efforts have borne some good fruit in patches, 11 but the community of legal subjects has not expanded significantly beyond the human. 12 Neither has the human–Earth relationship been transformed to promote greater intimacy and mutuality. Nor have the conditions for whole-Earth flourishing been secured (as evidenced by the scientifically confirmed reality of anthropogenic climate change 13 with all of its devastating species, ecosystem, and whole Earth system effects 14 ).
To meet its objectives, Earth Jurisprudence needs new and complementary strategies, one of which I propose here. In keeping with the axiom that ‘change in relationship begins with change in the self,’ I argue for redirecting attention away from the ‘other’ (ecocentric expansion of the community of legal subjects) to the ‘self’ (ecocentric expansion of the human legal subject).
Expanding the legal subject
The notion of expansion implies something already in existence that can be expanded, in this case the most prevalent concept-in-use of the legal subject: the rational, autonomous individual. There are other concepts of the legal subject in play within the Western legal milieu, but as expert profiler of such concepts Ngaire Naffine notes, orthodoxy favours the concept of the rational adult ‘imagined as self-created, pre-social individuals.’ 15 Naffine reports that the ‘rational, adult actor possesses the biggest bundle of rights and also the greatest bundle of duties, producing a richness of legal personality.’ 16 She discusses this rich legal personality as a ‘thick’ concept of the legal subject.
I argue that, whilst the rational autonomous individual is a thick bundle of rights and duties, the idea of the human being behind the concept is thin, taking no account of the relational, affective, and embodied complexity of human nature.
Jennifer Nedelsky employs these terms – relational, affective and embodied – to thicken the idea of human nature behind a concept of the legal subject she calls the relational self. 17 Nedelsky writes that she ‘aspire(s) to a change in people’s framework of thinking’ about human relations based on ‘a full awareness of human interconnection.’ 18 Such awareness, she argues, precludes ‘wilful blindness’ 19 to the plight of another person. In a brief reference to the work of Thomas Berry, Nedelsky also notes that her theory ‘invites the kind of relational thinking that will promote a respectful relation to earth and her (sic) many life forms.’ 20
I take up this invitation, arguing for a ‘full awareness of interconnection’ not only with regard to other humans, but also other life forms and systems of Earth and even the universe as a whole. Rosi Braidotti places ‘the critical posthuman subject within an ecophilosophy of multiple belongings … a relational subject constituted in and by multiplicity.’ 21 I place my posthuman – by which I mean, ecocentric – legal subject within multiple belongings: universe, earth, and person. I call this super thick legal subject the Cosmic Person.
Thomas Berry identifies the ‘radical discontinuity between the human and other modes of being’ (which he and many others see as enabled by the nature/culture dualism of Western ideology) as ‘the deepest cause of the present devastation’ of the planet. 22 I argue that to be a Cosmic Person is to be accountable to the radical continuity of existence. Human beings exist across and within and because of a continuity of three contexts, like a spiral encompassing three nodes of generativity: universe, planet and person. These nodes as they exist within each individual human being set terms for the human-Earth relationship that may prove transformational if properly accounted for within the law.
In seeking to account for the terms of these contexts, these multiple belongings, within a concept of the legal subject, I have available to me an exciting array of new thinking from both the sciences and the humanities. For example, ours is the first generation in history to know the universe, both empirically and poetically: With our empirical observations expanded by modern science, we are now realizing that our universe is a single, immense energy event that began as a tiny speck that has unfolded over time to become galaxies and stars, palms and pelicans, the music of Bach, and each of us alive today.
23
In a similar vein to what new cosmologies from the physical sciences are illuminating about the grandest scales of spatial and temporal existence, microbiology is offering fresh perspective on the smallest realities. We can now see that ‘organisms are constituted by ecosystems or communities – not as individuals – by a rich network of ecological connections’, 24 findings that challenge ‘the background assumptions (atomism, individualism, complete self-determination and self-deliberation) for autonomy’ as ‘false (or at least highly questionable).’ 25 As object-oriented philosopher Timothy Morton puts the terms dictated by the Earth context succinctly, ‘existence is always coexistence.’ 26
In the field of epistemology, Lorraine Code takes up these Earth terms of coexistence by arguing for a framework she calls ‘ecological thinking’ as a way to ‘reconfigure … subjectivity … to produce habitats where people can live well together and respectfully with and within the physical/natural world.’
27
She describes this framework as: work(ing) against the imaginary of God-given human dominion over all the earth and, more precisely, the dominion arrogated to certain chosen members of the human race, not just over the earth but over human Others as well … It aims to reenlist the successes of empirical science (notably ecology) together with other kinds of knowledge, reflexively and critically, in projects … capable of seeing nature and human nature as reciprocally engaged, intra-active … so as to shift the emphasis away from presumptions of entitlement and toward assuming responsibilities and precautionary principles …
28
Everything, ecology and, finally, experience are what constitute the Cosmic Person. The third context, being a person, involves the dimensions named by Jennifer Nedelsky: relationship, affect, and embodiment. We live. We love. We grow. In contrast to liberalism’s ideal of abstraction, 29 experience must be taken into account within the human-Earth relationship.
Thomas Berry tells a story that powerfully illustrates the potential of experience to transform the human–Earth relationship, if attended to and accounted for properly. He writes of a moment when he was a boy exploring a meadow near his home as a ‘magic moment’ of being suddenly and fully aware of the whole community of life in that meadow: The field was covered with white lilies rising above the thick grass. A magic moment, this experience gave to my life something that seems to explain my thinking at a more profound level than almost any other experience I can remember. It was not only the lilies. It was the singing of the crickets and the woodlands in the distance and the clouds in a clear sky. It was not something conscious that happened just then. I went on about my life as any young person might do … Yet as the years pass this moment returns to me.
30
This early experience, it seems, has become normative for me throughout the entire range of my thinking. Whatever preserves and enhances the meadow in the natural cycles of its transformation is good; whatever opposes this meadow or negates it is not good. My life orientation is that simple. It is also that pervasive.
32
The cosmic river relationship
Although the Cosmic Person is yet to be fully fledged as a legal subject, cosmic terms of engagement for the human-Earth relationship emerging from the three interrelated contexts of universe, planet, and person can be glimpsed now in the contemporary Western legal context. I offer as an example: Mediation Agreement for the Waimea Watershed Area.
The Waimea River system on the Island of Kaua'i in Hawai‘i is a large river system that ‘traditionally supported a legendary native stream ecosystem and Hawaiian community.’ 33 The Waimea was reduced by diversion to sugar plantations in the early 1900s, ‘leaving vast stretches of dry stream bed in the Waimea River and headwater streams.’ 34 Despite the fact that ‘only a fraction of the previous plantation land’ remains under cultivation and with ‘much less water-intensive crops,’ wasteful and excessive diversions ‘remained at plantation-era levels.’ 35
In July of 2013 Earthjustice, acting as legal counsel for the community group Po'ai Wai Ola/West Kaua'i Watershed Alliance, brought a case before the State of Hawai‘i’s Commission on Water Resource Management seeking to ‘increase (instream flow standards) for the Waimea River system and end the excessive and wasteful diversions.’ 36 Four years later, Po'ai Wai Ola/West Kaua'i Watershed Alliance’s Combined Petition to Amend the Interim Stream Flow Standards for Waimea River and Its Headwaters and Tributaries and their Complaint and Petition for Declaratory Order Against Waste were resolved in a mediation agreement.
Key points in the process and content of this case that exemplify a range of ‘cosmic’ terms for the human–Earth relationship include:
Mediation as a manner of resolution is relational instead of adversarial. Other cases in Hawai‘i involving water flow disputes have been characterized by on-going conflict (some have been in litigation for decades) and described as battles, struggles, and tooth-and-nail fights.
37
The parties in this case not only took one another into account, but also the river itself and their own shared experience of it. Not only was ‘an inventory of the stream system, water uses, and water users … and its headwaters and tributaries’
38
produced, but also the people involved ‘familiarized themselves with the stream system and non-stream uses by visiting the area (together) over two days.’
39
I refer the reader to the connection raised earlier between lived experience of nature and normalizing preservation and enhancement. The agreement achieved through this process expresses a commitment to coexistence as the standard for the human–Waimea River system relationship: The goal of the Waimea water systems is to preserve the life of the streams and their aquatic resources while allowing for agricultural and renewable energy uses to co-exist with the streams.
40
The process and content of the Waimea agreement is being touted as ‘a new path for resolution and reconciliation in the long-running water disputes in Hawai‘i.’
41
In my reading, it also offers stepping stones towards the mutually beneficial, intimate human–Earth relations that will secure the health and future flourishing of the whole community of life on Earth.
Instituting the ‘new normal’
Good results in structuring mutually beneficial human–Earth relations were achieved in the Waimea River situation without the explicit articulation of a new legal subject, raising the question of whether one is needed or not.
The answer to this question emerges out of a primary function of the legal subject in general: how we think about who counts at law and why ‘powerfully assists in the determination of the normal and the abnormal.’ 42 The rational autonomous individual has made the self-interested pursuit of the individual life project normal: a norm that carries, we now realise, terrible consequences for life on Earth. By contrast, the Cosmic Person as Universe-centred and Earth-embedded relational, affective, embodied self normalises an ecocentric self-interest: an interest in the project of life itself, which of course encompasses individual self-interest. It is a matter of ‘contrasting an ecological imaginary to an established imaginary of mastery.’ 43
It is my contention that the Cosmic Person as a concept of the legal subject is thick enough to ‘interrupt and unsettle’ the ‘social imaginary of … the affluent white western world that sees no limits to human possibilities of mastering and controlling the world’s resources – animal (both human and nonhuman), vegetable, and mineral – (and) no reason to contest the rightness of “man’s” claims to dominion over all the earth …’ 44 In other words, the Cosmic Person is an ‘instituting imaginary’: an example of ‘imaginatively initiated counterpossibilities’ whose job is to ‘interrogate the social structure to destabilize its pretentions to naturalness and wholeness, to initiate a new making.’ 45
Conclusion
The ‘counterpossibility’ of mutually beneficial, intimate human–Earth relationship can be structured using the very powerful tool of conceptualising the legal subject. Ideas matter, as Ngaire Naffine points out: ideas about human nature play out in law and result in real determinations about what we can do with ourselves and how we can live. These issues cut right to the bone. Most dramatically, they determine whether we have a right to live and a right to die.
46
Professor Naffine is talking about how ideas about human nature play out in issues like abortion and euthanasia. 47 But we might just as well be talking about anthropogenic climate change. Ideas about human nature that inform the conventional legal subject are foreclosing the right to life for the entire community of life on Earth, ourselves included.
Fortunately, this same historical moment that makes transformation of the human–Earth relationship so necessary and urgent is also the moment when resources for reconceptualising human subjectivity are plentiful and accessible, as I have tried to signal briefly here. Simple or thin ideas of human being behind concepts of the legal subject will not stand in such a complex world nor stand up against such challenging complexities as global climate change. It is my contention that our best chance at securing the conditions for the health and future flourishing of the whole community of life on Earth lies in embracing complexity from the inside out: from within our own self-understanding and how we project this self-understanding into powerful cultural institutions like the law. My conclusion in surveying the rich field of materials now available as never before by which to ‘reinvent the human – at the species level, with critical reflection, within the community of life-systems, in a time-developmental context …’ 48 is that we can place our trust in the Cosmic Person to bring law down to Earth.
Footnotes
Acknowledgements
I acknowledge the generous comments of the anonymous reviewers of this article and the helpful guidance of the consulting editor. I also acknowledge the constructive support and encouragement of my two supervisors, Professor Paul Babie and Dr Peter Burdon. I acknowledge with gratitude the Law, Literature, and Humanities Association of Australasia for the opportunity to present and receive feedback on the topic of this article at the ‘Dissents and Dispositions’ Conference in December 2017.
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
1
Jennifer Nedelsky, Law’s Relations: A Relational Theory of Self, Autonomy, and Law (Oxford University Press, 2011) 65.
2
Peter D Burdon, ‘A Theory of Earth Jurisprudence’ (2012) 37 Australian Journal of Legal Philosophy 28, 46.
3
Thomas Berry, The Great Work: Our Way into the Future (Three Rivers Press, 1999) 3.
4
Thomas Berry, ‘Appendix 2: Ten Principles for Jurisprudence Revision’ in Evening Thoughts: Reflecting on Earth as Sacred Community (Sierra Club Books, 2006) 149.
5
Ibid 96.
6
Lorraine Code, Ecological Thinking: The Politics of Epistemic Location (Oxford University Press, 2006) 28.
7
Carolyn Merchant, Radical Ecology: The Search for a Livable World (Routledge, 2nd ed, 2005) 75.
8
Ibid 76.
9
Ibid 76–7.
10
See Christopher Stone, ‘Should Trees Have Standing? Toward Legal Rights for Natural Objects’ (1972) 45 Southern California Law Review 450; Sierra Club v Morton 405 US 727 (1972); Christopher D Stone, Should Trees Have Standing: Law, Morality, and the Environment (Oxford University Press, 3rd ed, 2010).
11
See Abigail Hutchison, ‘The Whanganui River as a Legal Person’ 2014 39(3) Alternative Law Journal 179.
12
See Ngaire Naffine, ‘Legal Personality and the Natural World: On the persistence of the human measure of value.’ (2012) 3(Special Edition) Journal of Human Rights and the Environment 68, 73; Ngaire Naffine, Law’s Meaning of Life: Philosophy, Religion, Darwin and the Legal Person (Hart, 2009) 56–7; Stone, Should Trees Have Standing, above n 10.
13
14
15
See Naffine, Law’s Meaning of Life, above n 12, 29.
16
Ibid 47.
17
See Nedelsky, above n 1.
18
Ibid 366.
19
Ibid.
20
Ibid 12.
21
Rosi Braidotti, The Posthuman (Polity Press, 2013) 49.
22
Berry, above n 3.
23
Brian Thomas Swimme and Mary Evelyn Tucker, Journey of the Universe (Yale University Press, 2011) 2.
24
Jonathan Beever and Nicolae Morar, ‘The Porosity of Autonomy: Social and Biological Constitution of the Patient in Biomedicine’ (2016) 16(2) The American Journal of Bioethics 34, 42.
25
Ibid 35.
26
Timothy Morton, The Ecological Thought (Harvard University Press, 2010) 4.
27
Code, above n 6, 19.
28
Ibid 32.
29
See Nedelsky, above n 1, 160–2.
30
Berry, above n 3, 12–13.
31
Ibid 13.
32
Ibid.
33
34
35
Ibid.
36
Moriwake, above n 33.
37
38
39
Ibid.
40
Ibid.
41
Moriwake, above n 37.
42
Naffine, Law’s Meaning of Life, above n 12, 11.
43
See Code, above n 6, 31–5.
44
Ibid 31.
45
Ibid.
46
Naffine, Law’s Meaning of Life, above n 12, 14.
47
See Naffine, Law’s Meaning of Life, above n 12.
48
See Berry, above n 3, 159.