Monday, June 23, 2008

Earth Jurisprudence

Ian Mason

Published in Resurgence Magazine Marsch/April 2008

Humility, generosity, patience and restraint are the four pillars on which Earth Jurisprudence is founded. They will be the principles at the heart of the transition to climate stability, biodiverse environments and resilient livelihoods.

CONTEMPORARY PROBLEMS WITH climate change, loss of biodiversity and impoverished livelihoods are symptoms, not causes. The causes lie in the human psyche and result from losing connection with the natural world. Any strategy to resolve them requires the human race to reconnect with Nature in two ways: through the Earth in all its wonder, and through the spiritual wealth and beauty of human nature.

Earth Jurisprudence helps with both of these. Earth Jurisprudence is a philosophy of law that sees the Earth as the proximate teacher of a Great Jurisprudence in which the universe, not humanity, is the primary lawgiver. Where our technological culture and skill have persuaded us that humans are the masters of all things, Earth Jurisprudence invites humanity to engage as rational and loving participants in something much greater than we are.

Humility is therefore the first lesson of Earth Jurisprudence. This is the humility of the craftsman who surrenders to his materials, is guided by them and allows them to speak and sing for themselves; of the sculptor who finds and reveals the beautiful forms in the rock; of the teacher who finds and reveals the talents and strengths of her pupils and students; of the scholar who knows how little, not how much, we know of ourselves and this universe and contemplates their beauty and mystery in dumbfounded awe; of the lawyer who learns that law is discovered, not made, and that justice, not will, is the natural organising principle of human society and Earth community. It is the humility of the husbandman or woman who tends and cares for the soil and who loves its healthy and generous abundance.

Generosity is the second lesson of Earth Jurisprudence. Wherever we look Nature brings forth abundance. Everything is provided for through a wonderful web of giving and receiving, each as important as the other. To give and to give and to give is only to end up depleted and exhausted. To take and to take and to take is to end up engorged and even more exhausted. The natural balance is to give while receiving what is needed to be able to carry on giving. The economics of Earth Jurisprudence is not about scarce resources; it is about proper use, distribution and replenishment of natural abundance.

Patience is the third lesson of Earth Jurisprudence. In the universe and in Nature, everything comes in its own good time. Years follow the Earth round the sun, season following season with the tilt of the axis. Months and tides follow the moon; days and nights follow the spin of the Earth. Each has its own time providing activity and rest, harvest and replenishment, change and consistency, all in proper time.

With patience comes restraint, the fourth lesson of Earth Jurisprudence. This is how the natural balance of abundance is maintained. If any species, any person, takes more than its necessary due, there will be a shortfall somewhere. If the grasslands expand, forests and jungles contract; where the forests expand grasslands contract: each the inevitable counterpart of the other. Where human demands expand, Mother Earth’s other children lose their diversity and their livelihoods, and sooner or later people do too.

In civil affairs we take this law of restraint so for granted that we barely notice it. Human beings naturally live in human communities and that is only possible when we restrain our more aggressive tendencies. We are all moved, at times, by anger and fear, jealousy or desire but we are socially conditioned to restrain them in the interests of the human community. Such restraint in the civil sphere is the foundation of civil freedom. Earth Jurisprudence, the law of the Earth herself, teaches that similar restraint is a necessary condition of successful life in the community of Nature. It also teaches that Nature’s abundance is soon depleted if this condition is not observed. Just as in civil affairs, our freedom of action in Nature is curtailed by respect for a wider community.

IT IS NO mere coincidence that these lessons of Nature are also the lessons of so many traditions of spiritual wisdom. Human nature is part of the Nature of the universe, not separate from it. The very same principles that unlock and maintain the treasury of natural abundance also unlock the inner treasury of human nature. Shakespeare, through the voice of Henry V, was right to declare that “In peace there’s nothing so becomes a man as modest stillness and humility…” Human nature offers the deepest peace, the fullest understanding and the profoundest happiness and satisfaction to those who follow and practise these simple principles taught by Nature.

Earth Jurisprudence as a philosophy of law can be taken as a personal code of self-development and as a founding philosophy of law for societies. Communities and societies embed their understanding of life, Nature and the world around them in the laws and customs they adopt for themselves. In earlier times the philosophy, or jurisprudence, of Natural Law gave us principles of human rights and government which are embedded in modern ideals of democracy and the rule of law.

But Natural Law jurisprudence, at least in its later interpretations, was mostly about human nature and the relations between humans and God. Earth Jurisprudence adopts a wider view. Seeing a divine presence in every detail of the universe, it draws its principles and conclusions from Nature’s lessons about the interaction of humanity and the universe in the immediate context of the Earth. Even if it is not seen as manifesting divine presence, this context remains the same and equally valid.

Where Natural Law gave principles of human rights and of obligations of the powerful towards the weak, Earth Jurisprudence adds obligations to the natural world. Where Natural Law taught us not to discriminate unfairly between human genders and races, Earth Jurisprudence requires that we respect the integrity and intrinsic value of the Earth and all its species, affording them rights and protections where human carelessness, rapaciousness or ignorance places them under threat.

At the level of states, nations and governments, Earth Jurisprudence translates into what Cormack Cullinan has called Wild Law and which also appears as Community Ecological Governance. Wild Law is the practical application of Earth Jurisprudence principles in the human law-making process whether through customs, statutes, common law judgments or international instruments. Community Ecological Governance is the customary regulation of life that people find who listen to the voice of Nature.

In short, Earth Jurisprudence offers principles for a natural way of living. It works at the individual level by offering lifestyle choices based on humility, generosity, patience and restraint. It works at the level of law and policy by pointing decision-makers towards the needs of the whole natural world, enabling humans to live according to universal regulations. It works at the spiritual level by being attuned to the spiritual needs and aspirations of human nature in wholesome harmony with the natural and spiritual universe. Perhaps most importantly, it works at the human level by reminding us that the human and natural worlds can co-exist in a mutually enhancing partnership where we are truly friends of the Earth.

Ian Mason is a barrister who is also Head of Law and Economics at the School of Economic Science.


Earth Jurisprudence: Aligning law and society with nature

IT IS CLEAR that our legal and governance systems need to change, radically.

We are raising the temperature of the planet to dangerous levels that threaten the wellbeing and survival of the Earth and its communities. Corporate driven solutions to agriculture and the new push for agrofuels are leading to higher food prices and creating a class of “new poor”, whilst also leading to more environmental degradation. In many parts of the world, biological diversity and the basic ecological resources communities need to survive are becoming more acute. If we continue consuming and polluting as we are doing, with little regard for the long-term health of our planet, we will almost certainly trigger far greater ecological catastrophes. We may even render ourselves extinct. Humanity faces very real and serious challenges if it is to survive. The planet is crying out for a change of direction. But what should this change of direction consist of and where will it take us? How can we rebuild a healthy relationship with our planet and with each other? And what policy framework and governance structures should we turn to in order to create a more harmonious relationship between humans, non-human species and the Earth?

Thomas Berry, cultural historian and visionary, states starkly that the western industrial legal system legitimises human destruction of our life support system because it prioritises short-term human needs and interests, turning its back on the welfare of the wider community of life on Earth – The Earth Community. He calls for a radical new jurisprudence that will transform the way we think about our relationship with the planet and the way we govern our territories, our institutions and education systems. Thomas Berry calls for us to define a new Earth Jurisprudence, a notion that challenges us to shift our thinking from a humans-only orientation to a more Earth centred approach based on an understanding of ourselves as an inextricable part of the Earth’s living systems.

Earth Jurisprudence is premised on the understanding that law and governance should protect the wellbeing and integral functioning of the planet so that all components of the Earth Community live in healthy ecosystems that sustain the diversity of the natural world. The mission must be to re-envision law and governance and work to open spaces that allow us to support the wellbeing of the Earth as a whole. This involves fostering mutually enhancing relationships among humans and nature based on reciprocity, restraining potentially damaging human activities and recognising the rights of nature.

There are many sources of inspiration for Earth Jurisprudence, including nature herself. If we are to understand these greater laws of the Earth – the Great Jurisprudence – then we are required to become eco-literate again. The complex spiritual and customary values of non-industrial and indigenous societies inform Earth Jurisprudence thinking. Their social and ecological governance systems are often founded upon the basis of customary lore, which is constituted through and informed by the inter-generational transfer of culturally-specific ancestral knowledge about their Story of Origin. Such lore tends to be based on the recognition that the health of the ecosystem as a whole is integral to the maintenance of human health and wellbeing. According to this view, if we take too much from the environment without giving nature its due or the respect it deserves, if we do not offer something back to nature in return, then our societies will fall ill. Indigenous people have evolved a range of norms, practices and taboos, which ensure they govern themselves in a way that maintains reciprocity and a healthy balance between the needs of the human communities, nature and past and future generations. Earth Jurisprudence recognises the importance of these ways of thinking and assesses the extent to which western governance systems can integrate and adapt them in a practical way in order to enable us to work towards a more sustainable future.

This radical and innovative approach to law and governance is guiding and inspiring a wide range of people and organisations in many different parts of the world.

  • In the USA, community associations have been drafting their own ordinances in partnership with their local government to secure their constitutional rights to a healthy environment by prohibiting corporations from polluting in their boroughs. This bottom-up approach to law making has been particularly effective in recognising the rights of natural ecosystems – for the first time in modern US history.
  • In Europe, communities are using ecological mapping processes to initiate consultations and dialogues with their governments over matters of biodiversity protection and access to traditional fishing areas. The EU Water Framework Directive includes elements of Earth Jurisprudence thinking. The Directive includes provisions for more public participation in decision-making processes over water environments. Its implementation through river basin management plans offers opportunities for the introduction of ecologically based systems of governance that are rooted in the historical and cultural experiences of the communities that surround the river. Several communities along the River Thames are now eager to embrace opportunities to nurture Earth Jurisprudence and Community Ecological Governance in a western urban fluvial context.
  • In Africa, rural and indigenous communities are increasingly looking to their customary lores and norms as a means to govern themselves and their relationship with the environment. In Ethiopia, organisations are working with forest dwelling communities and the regional government to strengthen community involvement in ecological governance to protect key ecosystems from the expansion of large export-oriented tea and coffee plantations. In Kenya, after years of struggle and negotiation, important water catchments are now being protected by community associations. They are being governed in a way that replenishes the natural ecosystem and benefits the local people and non-human species that depend upon them for survival.
  • In Latin America, indigenous communities govern huge areas of territory according to strict culturally embedded ecological principles. In Colombia, traditional indigenous authorities are managing a territory of approximately 21 million hectares, are developing their and their own education and health systems, and are pioneering an ecologically based governance path. Ecuador is poised to become the first country to recognise the rights of nature in its national constitution, which is being decided upon in July 2008.
  • In Asia, through the Navdanya Movement, farmers are organising around the principles of ‘Earth Democracy’ by strengthening community governance over their lands. They are building community seed banks so that local farmers can have access to and exchange GM-free seeds in times of drought and famine. They are defending their right to produce healthy, organic, diverse and GM-free food for local markets.

Why is Earth Jurisprudence important?

  • Earth Jurisprudence encourages us to challenge our perceptions of the source, function and effectiveness of law, governance, education, economics and religion.
  • Earth Jurisprudence provides a practical, theoretical and spiritual framework that allows us to develop strategies for survival in today’s climate of governmental, economic, environmental, social and spiritual crisis. We find ourselves at a critical time in humanity’s history. This crisis requires radical and innovative responses.
  • Earth Jurisprudence informs governance and law making in relation to a wide range of subjects and issues, such as climate change, the conservation of sacred sites, food and agriculture, indigenous rights, land and territory, forest protection, public participation in ecological governance, and many other areas.
  • Earth Jurisprudence encourages us to change our mindset and realise that law is not made but discovered from nature. Indigenous people provide inspiration for us because their governance systems are highly dependent on maintaining a healthy relationship between nature and humanity.
  • Looking at law and governance through an Earth Jurisprudence lens provides us with an opportunity to re-vision our governance systems and personal practice towards the environment so that they are more responsive to the needs of the biosphere.
  • Earth Jurisprudence allows us to become eco-literate again, thereby strengthening our calling to protect nature and giving us a greater sense of our place on and responsibilities towards the planet.
  • Earth Jurisprudence provides us with an ethical code of thinking and practice that can assist us in the personal transformation that is needed to enable us to become better Earth Citizens.