(1759-7196 - Journal of Human Rights and The Environment) Towards An Ecological Philosophy of Law - A Comparative Discussion

Journal of Human Rights and the Environment, Vol. 4 No. 2, September 2013, pp.
167190
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 and
principles for addressing multiple ecological crises, yet environmental law is structurally
and conceptually rooted in a broader legal tradition thoroughly implicated in the domination and othering of nature. The ecological worldview challenges the roots of modern
law, casting critical light upon Cartesian dualism and the epistemology of mastery.
While environmental law has incorporated some of the new knowledge offered by ecology
into its normative texture, and has shifted its focus from fragmented parts and individuals
(for example, individual species) towards wholes, relationships and complexity (for example, biodiversity, ecosystems processes), it remains far from being a comprehensive translation of the ecological worldview into law. Against this background, this article will
discuss and compare two frameworks Earth Jurisprudence and Law for Nature
both of which aim to elaborate an ecological philosophy of law. It will be suggested
that while their critical premises are similarly grounded on ecological critiques of central
legal categories such as subject (persons), object (things) and property (ownership), their
respective ethical stances and central strategies are quite different: Earth Jurisprudence
aims at articulating an ecocentric narrative in which nature is understood as a plurality of
legal subjects endowed with rights; Law for Nature starts from a concept of ecological
normativity, which through a continuous transformative process re-orients law, and
grounds the relationship between subject and object in the concept of patrimonium. The
tensions between subjective rights and objective norms, between individual and community, and between practical action and long-lasting, radical re-orientation, operate as
guides for the discussion offered here.
Keywords: Earth Jurisprudence, legal philosophy, Natural Law, rights of nature, subjective
rights, ecocentrism, property, ecology
1 INTRODUCTION
Over the last 40 years, the science of ecology, with its worldview,1 has exerted an increasing influence over western consciousness. The epistemology of mastery underpinned
*
I am thankful to the Editorial Board of this Journal and to the anonymous reviewers for
helping me improve the argument presented in this article. I am particularly thankful to Anna
Grear 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, as
shown by for example, KE Cuddington, BE Beisner, Ecological Paradigms Lost: Routes of
Theory Change (Academic Press, Burlington MA 2005), there is enough common ground to
talk of an ecological worldview. See, for example, M Tallacchini, A Legal Framework from
Ecology (2000) 9(8) Biodiversity and Conservation 1085.
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Journal of Human Rights and the Environment, Vol. 4 No. 2
by Cartesian dualism2 and sustained by the programmatic framework of Francis

Bacon3 no longer goes unchallenged. Environmental law has incorporated some of
the new knowledge offered by ecology into its normative texture,4 and indeed has
shifted its focus from atoms, parts and individuals (for example, individual species),
to wholes, relationships and complexity (for example, biodiversity, ecosystems processes). Yet we are arguably still far from a comprehensive translation of the ecological
worldview into an ecological philosophy of law.
This article will discuss two contributions to ecological legal philosophy: Earth
Jurisprudence and Law for Nature. While setting out from similar critical analyses,
these two contributions elaborate two very distinct strategies for the (re-)foundation
of law on ecological premises. In this sense both emerging in a time of crisis intend
to 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 shortcomings of environmental law, and briefly review some accounts which identify a
process of trickling up supposedly closing the gap between law and ecology. This process 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, after
having identified law as a product and as a custodian of a particular culture as embodied in a particular worldview, will present in turn each of the two afore-mentioned
legal philosophies and their respective challenges to law. Section 4 will carry out a
comparative and critical discussion of their different strategies. Lastly, some conclusions will be presented.
2 ENVIRONMENTAL LAW: A STRATEGY OF CONTAINMENT?
Environmental law finds itself in a very delicate position, tasked as it is with
setting the normative framework necessary to address a large number of critical
ecological problems: climate change, toxic waste, severe pollution of air, water,
and soil and biodiversity collapse.6 Yet environmental law has emerged within a
specific historical experience, infused with particular epistemological assumptions
and cultural values and embodying a particular worldview. Historically, law, hand
2. Whereby res cogitans reason, mind is the exclusive prerogative of humans. Everything
else res extensa is only inert matter. The Cartesian distinction produced a fracture between the
mind and the body, the subject and the object. See, ex pluribus, A Grear, The Vulnerable Living
Order: 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] service and make her [our] slave, W Leiss, The Domination of Nature (McGill-Queens University
Press, Montreal 1994) at 57. See also C Merchant, The Death of Nature: Women, Ecology and
the Scientific Revolution (HarperCollins, New York 1980).
4. See RO Brooks, R Jones and RA Virginia, Law and Ecology: The Rise of the Ecosystem
Regime (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, Chicago
1970, 2nd edn).
6. See, amidst a growing sea of evidence, Millennium Ecosystem Assessment, Ecosystems
and Human Well-being: Synthesis (Island Press, Washington, DC 2005) which describes the
dire situation of biodiversity and ecosystems.
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Towards an ecological philosophy of law: a comparative discussion
169
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 Cartesian
legal ontology.8
As Bosselmann observes, while environmental law has been able to save many
trees, it may well have lost sight of the forest, which is being lost at an ever more
alarming rate.9 Environmental law has predominantly functioned as a mitigating
instrument whose strategic aim is that of containment: the ecological disruption
of economic and industrial activities is to be mitigated, contained or otherwise
reduced to the extent possible. Incorporating best available technologies (BATs),
best environmental practices (BEPs), and emphasizing the internalization of environmental costs, much environmental law maintains a business as usual tone.10
Market-based environmental policy forms the prevailing orthodoxy.11 Voluntary
standards12 and sustainability certifications based on NGO-Industry partnerships13
are on the rise, reflecting the central role that the private-public partnerships
model has attained since at least the 2002 World Summit on Sustainable Development. Meanwhile, however, the destruction of ecosystems continues: for example,
the eco-destructive extractive industrys practices, as evidenced by the current
Alberta Tar Sands project, provides but one macroscopic instance. The fact that
such practices must respect some standards seems merely to confirm the containment role of environmental law, since the overall framework of action remains
that of industrial capitalism and a growthist14 development model. In this sense
environmental law also arguably functions as a legitimating mechanism, operating
as a force or line designed to keep chaos [] at arms length,15 separating the
sacred [from] the abject.16 In this light, environmental laws protectionism and
the preservation of the more majestic aspects of Nature rely upon acts of partition
and 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 151
at 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. Environmental 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 products) <http://www.fsc.org>.
14. Growthism has been defined as the utopian faith in the inevitability of endless material
growth, R Douglas, Growthism and the Green Backlash (2007) 78(4) The Political
Quarterly 547.
15. M Hasley, Majesty and Monstrosity: Delueze and the Defence of Nature in
A Philippopoulos-Mihalopoulos (ed), Law and Ecology: New Environmental Foundations
(Routledge A Glasshouse Book, Oxon, New York 2011) at 21819.
16. Ibid., at 219. In a similar fashion, albeit using a Focualdian approach, Lee Godden emphasizes how modernity constructs nature as other, and in doing so allows only one of two alternative views: either as an object of control through property rights or as wilderness to be
preserved apart from human society, L Godden, Nature as Other: The Legal Ordering of the
Natural World (PhD Thesis, Faculty of Law, Griffith University 2000) at 2.
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of an ongoing and generalized ecological violence17 entirely consistent with and

typifying growthist priorities.
Finally, environmental law is traditionally reactive and fragmented into many subfields (water, air, soil, biodiversity, waste, climate etc.), and thus contributes to the
fragmentation, individualization, and externalization of nature such that it remains
other,18 in a way which reflects and replicates the dualist, reductionist and mechanistic worldview of modernity.
2.1 Is a new worldview trickling up?
Despite the broad intransigence of the status quo, there nonetheless appears, prima
facie at least, to be a significant evolution taking place in the manner in which law
understands, translates and accommodates nature within its normative and regulatory framework. Emmenegger and Tschentscher observe a progression from a
purely anthropocentric vision [] to acknowledging an intrinsic value of nature,
marking a change of the predominant paradigm in international environmental
law. 19 Brooks et al. show how the evolution of the relationship between law
and 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 approaches
to environmental protection.21 Such narratives seem to provide evidence of a process of a trickling up of the ecological worldview. Yet the new language of ecosystems is ambiguous, and is still embedded in a legal ordering which remains the
expression of more outdated ontologies of humanity and nature.22 The dominant
value of utility to humans is still stubbornly central in most international environmental regimes.23 Moreover, well established principles of environmental law and
policy such as the Polluter Pays principle operate within the theoretical framework of environmental economics.24 Cost-benefit evaluations remain a central concern 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 Natures Rights Seriously: The Long Way to
Biocentrism in Environmental Law (1994) 6(3) Georgetown International Environmental Law
Review 545 at 5478.
20. Brooks et al. (n 4).
21. See WJ Christie, M Becker, JW Cowden and JR Vallentyne, Managing the Great Lakes
Basin as a Home (1986) 12(1) Journal of Great Lakes Research 2 at 4. Indeed the Great Lakes
is one clear example of the integration of ecosystem ecology into a transboundary legal framework, as evident in the 1978 Agreement Between Canada and the United States of America on
Great Lakes Water Quality, as amended in 1983, 1987 and 2012.
22. Emmenegger and Tschentscher (n 19) recognize how in the field of international environmental law and sometimes within individual legal instruments different underlying ethical
orientations inform specific provisions and/or Treaties.
23. See A Gillespie, International Environmental Law, Policy and Ethics (Oxford University
Press, Oxford and New York 2000).
24. See, among others, HC Bugge, The Principles of Polluter Pays in Economics and Law in
E 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).
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environmental principle with most far-reaching potential,26 is most often framed as

being a risk management tool organized around the central concepts of lack,
serious or irreversible damage and cost-effectiveness,27 rather than being internalized as a permanent modality expressing an inherent and epistemologically
insuperable state of uncertainty.28
It is against this background that the rest of this article will discuss the possibilities of moving towards an ecological philosophy of law by way of comprehensive
re-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 classifying the real a typical legal operation always implies a prior philosophical commitment, and its re-production.30 Law is in this respect a major articulation of a
cultures self-concept, representing the theory of society and environment within
that culture.31 This self-concept is contingent on a wider worldview, understood
for the purposes of the present argument as a network of coordinates through
which the bearers of [a given] culture perceive reality and construct their mental
image 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 in
all his actions, and as such, defining human consciousness in a particular
culture.33 This description resonates with the Foucaldian fundamental codes of
26. Though subject to contested views. See, ex pluribus, J Peel, Precaution A Matter of
Principle, 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 certainty (Rio Principle 15). Such lack is in most cases considered a temporary condition, to be
progressively eliminated: measures based on the precautionary principle should be maintained
so long as scientific information is incomplete or inconclusive, Communication from the Commission on the Precautionary Principle COM/2000 (emphasis mine). The stringency of precaution is, moreover, more evident in cases regarding human health and safety, rather than the
environment. 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 when
faced 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 to
consider law; to consider law, one cannot fail to see it as part of culture; L Rosen, Law as
Culture: An Invitation (Princeton University Press, Princeton 2008) at 67. 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: limpossible
dfinition? (1979) 24 Archives de philosophie du droit, Les biens et les choses 259, particularly at 269.
31. JC Smith and DN Weisstub, The Western Idea of Law (Butterworth-Heinemann, Oxford
1984) at vii.
32. AJ Gurevich, Categories of Medieval Culture (Routledge & Kegan Paul, London 1985)
at 13.
33. Ibid., at 13.
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a culture,34 which govern its schemas of perception35 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 juridical strategy and imagination, which will in turn solidify and structure a specific
reality, while occluding others.
It must be kept in mind however that a worldview is never total, but exists
rather as a prevailing framework, contestable from both within and without. 37
As such, a worldview can limit and orient, even discipline, how law and legal
actors articulate reality, or how they mediate new knowledge or social struggles
but cannot ultimately determine these choices.38 It is in this incomplete yet powerful sense that the current dominating legal mode39 is framed by, and reproduces, its
foundational narrative, its anthropocentric, utilitarian, worldview.40 In this worldview, the external world is imagined as an assemblage of passive entities, dominated by physical laws and susceptible to subjugation and appropriation by the
sovereign subject, whether private or public. Those strands of legal philosophy
attempting to unsettle and re-compose the relationship between humankind and
nature problematize this worldview legal modernity both from within and without, and question its compatibility with an ecologically deep orientation.41 The two
alternative legal philosophies discussed in the remainder of this article take, to different extents, one such re-composing approach: both are premised on the idea that
ecological wisdom and values a new worldview should (re-)inform the entire
legal order.
34. M Foucault, The Order of Things. An Archaeology of the Human Sciences (Routledge
Classics, New York 2002) at xxii.
35. Ibid., at xxii.
36. Ibid., at xxiii.
37. That is, internally through critiques articulating subjugated perspectives in a counterhegemonic 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 can
only observe that the modern worldview is understood here as a genealogical category, in the
sense of a cultural framework always vigilant to the undercurrents of antiodern, preodern and
nonodern 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 Be
Defended, Lectures at the Collge de France 197576 (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 to
Create Ecological Law in J Holder and D McGillivray (eds), Locality and Identity: Environmental Issues in Law and Society (Ashgate/Dartmouth, Aldershot 1999) calls it liberal
western law.
40. There are clear parallels with Kuhns theory of paradigm shifts in science, particularly as
regards 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 discussed in this article, one can mention at least two other theoretical articulations: critical environmental law and green legal theory. For the former see Philippopoulos-Mihalopoulos (n 15);
for the latter M MGonigle, Green Legal Theory: A New Approach to the Concept of Environmental Law (2008) 4 kologisches Wirtschaften.
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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 draws
on several intellectual sources, such as subjugated indigenous traditions, deep ecology
and religious notions of the sacredness of nature. 44 While there is no uniform
approach or theoretical framework, the main unifying premise can be indicated in
the recognition that the unfolding ecological crises are a consequence of a wider cultural crisis. Law, in turn, is seen as a significant description of the way a society perceives itself and projects its image to the world,45 and as such, it is part of the
problem: the legal order reflect[s] a harmful and outdated anthropocentric worldview.46 EJ analyses the contribution of law in constructing, maintaining and perpetuating anthropocentrism and looks at ways in which this orientation can be []
eliminated.47 Central critical targets of EJ are the dominant prevailing conception
of humanity and the philosophy and law of property, seen as being a key mechanism
for the exploitation of nature. Berry, in particular, has endeavoured to outline a new
conception of human being by translating recent scientific insights primarily those
of ecology into narrative form, with the goal of expanding the reach of human ethics
and elaborating an ecocentric cosmology in the form of a new story. Cullinan has
further developed this approach specifically in relation to the idea of law. He emphasizes how any given legal order is constrained by its tacit frame of reference, by the
deep structure of the prevailing social values.48 This is evident as regards the second
main theme running through EJ: that of property. Western law thinks in terms of
property rights and property relations: land and nature are automatically conceived
as consisting of parcels and objects to be owned.49 Burdon, for example, argues
that the theory and idea of property rights provides a foundational self-understanding
of 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 12930. Important texts in
the emerging canon of Earth Jurisprudence are, ex pluribus, T Berry, The Great Work: Our
Way into the Future (Bell Tower, New York 1999); C Cullinan, Wild Law: A Manifesto for
Earth Justice (Siber Ink, South Africa 2002); M Bell Thomas Berry and an Earth Jurisprudence: 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 Philosophy of Earth Jurisprudence (Wakefield Press, Kent Town 2011b); PD Burdon, Wild Law:
The Philosophy of Earth Jurisprudence (2010) 35(2) Alternative Law Journal. Further references 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 connected
with 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 Natures
Balance (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 of
Illinois Press, Urbana 1996) at 49, as quoted by Burdon 2010 (n 42) at 58.
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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 tacit
cultural reference a worldview which, EJ scholars argue, must itself be changed
before alternative ways of imagining property relations can take hold and be translated
into legal principles. Future legal concepts, argues Burdon,52 will be shaped by the
cultural context from which they emerge.
3.1.1 Natural Law?
EJ, particularly in some of its prevailing interpretations, seems to move in the direction of Natural Law, notwithstanding Cullinans dismissal of Natural Law as being
inherently anthropocentric,53 and other EJ theorists scepticism towards this movement.54 EJ is founded on what Berry calls the Great Law (and Cullinan, the Great Jurisprudence): a set of timeless and unified principles, or laws, manifest in the Universe
itself,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 Natural
Law interpretation of EJ,57 albeit one infused with an ecocentric cosmology.58 He
argues that the Great Law can be discovered through scientific inquiry, yet that this
method can provide only approximate descriptions that are interpreted and applied
by human lawmakers.59 The goal of scientific inquiry in this context is that of discovering 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 considered
relevant only in decisions concerning the environment, and particularly humanity
Earth interactions and transactions.62 However, whenever relevant, this relationship
50. Burdon 2011a (n 42).
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) at
134. However, Lynda Warren also believes the similarities [between EJ and Natural Law] are
greater than the differences, L Warren, Wild Law the Theory (2006) 18 Environmental Law
and Management 11 at 13.
54. See for example, A Schillmoller and A Ricketts, Recognising Rights for Nature: A Negotiation of Principle and Pragmatism (2012) 21 Transformations; and A Schillmoller and
A Pelizzon, Mapping the Terrain of Earth Jurisprudence: Landscape, Thresholds and Horizons
(2013) 3(1) Environmental and Earth Law Journal.
56. Burdon 2011a (n 42) at 135.
57. Earth Jurisprudence observes Burdon, can correctly be described as a theory of Natural
Law, Burdon 2011a (n 42) at 13368.
58. Burdon draws on the classical natural law tradition, and particularly the work of
St. Thomas Aquinas, and analyses both Thomist and neo-Thomist natural law traditions, but
focuses primarily on Aquinas work, Burdon 2011a (n 42) at 13368.
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 primary
law-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.
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is such that only those human laws consistent with the principles of the Great Law
possess the quality of law. Only such laws are called wild law.63 Individuals are
not morally bound to laws that do not flow from the Great Law and can legitimately
resist these corrupt laws through civil disobedience.64 Finally, EJ expands Aquinas
notion of the common good65 to include not only humankind but the entire Earth
Community.66 This last is a crucial element of the ecocentric turn that Burdon
attempts 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 contemporary 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 when
the destruction of nature threatens human survival or some other human interest.67
By contrast, EJs starting point is that nature is inviolable and that departures from
this principle are to be considered as exceptional: [i]n that sense [EJ] is a radical
departure from the norms of modern legal thought.68 To reach this goal, the prevailing strategy employed within EJ is a rights-based approach.69 Both Cullinan and
Burdon, 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 Jurisprudence, B Filgueira and I Mason, Wild Law: Is There Any Evidence of Principles Of Earth
Jurisprudence In Existing Law And Legal Practice?(UKELA and Gaia Foundation Research
Paper 2009) at 4. Filgueira and Mason also elaborate a set of indicators, as a way to measure
the degree of compliance of existing laws to the broader framework of Earth Jurisprudence.
64. Burdon 2011a (n 42) at 1334.
65. Law is, according to Aquinas, an ordinance of reason for the common good, made by him
who has care of the community, and promulgated, T Aquinas, Summa Theologica, Prima
Secundae 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 EJ
as a legal philosophical framework and a rights-based approach. In fact a number of EJ scholars
and theorists are sceptic or critical of rights discourse. E Fitz-Henry, Between Rights and
Services, Earth Jurisprudence: Building Theory and Practice From, Third Wild Law Conference (Griffith University, 1618 September 2011) cautions for example against uncritical
embrace of rights discourse (particularly as regards the role nature rights may play towards
further marginalization of already marginalized communities and the risk of corporate appropriation of rights discourse, leading to further commodification of nature). See also, among
others, K Bosselmann, The Principle of Sustainability: Transforming Law and Governance
(Ashgate, Aldershot 2008), particularly chapter 4 (Bosselmann cautions against overextending
the 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, Environmental 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 California
Law Review 1.
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nature legal protection.71 Berry maintains that every entity has a set of fundamental
rights, originating in the fact of existence:72 the right to be, the right to habitat, and
the 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-specific 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 qualitative
not 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 responsibilities of humanity towards natural entities and a means of giving legal recognition
to natures inherent worth by recognising what is already there.75 Underlying this
approach is the concept of Earth Community, which presents two main elements: the
interdependence and the subjectivity of natural entities: human beings exist as one
interconnected part of a broader community that includes both living and non-living
entities [] 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 modernitys
anthropocentrism, especially as it is reflected in the law of property and in the role
assigned to natural entities as objects. EJ makes an attempt at elaborating an ecocentric normative framework in which legal subjectivity is not the privilege of humans
only, 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 turn
to the second legal philosophical approach. Law for Nature77 is a framework developed by the Italian legal philosopher, Mariachiara Tallacchini. It takes as its starting
point what it defines as ecological normativity, the central aim of which is to suggest
that ecological knowledge is a necessary precondition for environmental law.78 Tallacchini also discusses potential links with the tradition of Natural Law.79 However, she distinguishes Natural Law from ecological normativity on the grounds that the former
establishes 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 13.
The US Supreme Court upheld the Ninth Circuits decision, which had found that the Sierra
Club 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 he
calls moral pluralism, which invites us to conceive moral activities as partitioned into several distinct domains, each governed by distinct principles and logical texture, Stone 1985 (n 70) at 9; and
further, [i]t makes no sense to accord a tree the right to sit on a jury, or to make a will. But surely a
tree could be the beneficiary of a will, at 378.
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. Ecologia
e Filosofia del Diritto (Giappichelli Editore, Torino 1996).
78. Tallacchini (n 1) at 1089.
79. See Tallacchini (n 77) at 248 et ff.
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which far from being a given must function as a guiding parameter against which
to measure the adequacy of law: survival.81 Within this framework, Tallacchini distinguishes three dimensions of ecological normativity: the normativity of limits, the normativity 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 political
science,82 the significance of limits as regards the structure and philosophy of law
has remained underexplored.83 Tallacchini wishes to re-centre law as a system of
norms and as the formal structure of social organization around the idea of ecological limits by way of a functionalist interpretation of law:84 [a]scribing survival the
status of a defining condition of law, submits Tallacchini, is a [strong] conception of
necessary content in law; one which provides environmental norms with a deep foundation, since it assumes that legislation, which ignores or voluntarily violates the goal
of ecological protection (and survival), lack the full status of legal norms, since they
contradict a fundamental condition of legal normativity.85 This ecological grounding
provides the parameter for evaluating legal norms, in terms of their content,86 through
the (external) bio-functional principle of survival. In this manner, the ideas of ecological limits and the goal of human survival at multiple scales become central
legitimizing conditions for environmental law.87
3.2.2 The normativity of uncertainty
The normativity of uncertainty is predicated on the crucial epistemic role that ignorance has acquired in post-modern accounts of society, where science can no longer
provide 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 limits
to respect for the achievement of the human survival is not obvious, since survival, as a goal
normally 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 GeorgescuRoegen, 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, San
Francisco 1973). More recently the concept of Planetary Boundaries has emerged, see J Rockstrm,
W Steffen, K Noone, 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 Srlin,
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 the
Safe 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 [] as
a theoretical element in the definition of a legal system. General limits are regularly discussed and
often legislated: to emissions, pollution, concentration, harvesting, extraction, etc. However, such
limits are considered generally within the context of a strategy of containment, as discussed in Part 1
of this article, rather than as a structural and legal philosophical question.
86. And not only as to its form, i.e. as to whether a norm is valid.
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sense law is engaged with the responsibility to solve problems which science cannot
decide and that are linked to uncertain outcomes.88 This situation is determined by
a) the so-called pluralism de vrits89 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 or
neutral 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 both
objective and subjective grounds.91 Every decision then carries within it specific
normative, ethical and political commitments arising from both scientific and
legal processes.92 A key shift, however, is that ignorance itself becomes pregnant
with epistemic relevance, and must be explicitly considered to be an integral part
of ecological knowledge, either as risk or uncertainty. Under conditions of
risk, 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 Tallacchini
refuses, however, the Jonasian model of a heuristics of fear,94 as it would imply
the 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 and
juridical consequences.96 In this sense, she talks of a scientific prudence,97 characterized 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 lenvironnement: rflexions pour le
cadre conceptual du pluralism de vrits (1995) 34 Revue interdisciplinaire d'tudes juridiques 33.
90. Ibid., at 61: Le pluralisme de vrits montre bien que ce rle absolu, extra-politique,
extra-juridique et indiscutable accord la science et ses verities est inacceptable. See also,
on normative science, RT Lackey, Appropriate Use of Ecosystem Health and Normative
Science in Ecological Policy in DJ Rapport, WL Lasley, DE Rolston, NO Nielsen, CO Qualset
and 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. Methodological operations such as extrapolation from one context to another are never neutral
and 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 Populist
Reforms (University of California Press, Berkeley 1991); and KS Shrader-Frechette, Methodological Rules for Four Classes of Scientific Uncertainty in J Lemons, Scientific Uncertainty and Environmental Problem Solving (Blackwell, Oxford 1996) at 1239.
93. Tallacchini (n 1) at 1095. See also J Paterson, The Precautionary Principle: Practical Reason, Regulatory Decision-Making and Judicial Review in the Context of Functional Differentiation in Philippopoulos-Mihalopoulos (n 15), where he also discusses a number of tools
available to science to delineate an events plausibility, and available to law to reach a reasonable response, at 889. It must be noted that uncertainty in Tallacchinis framework corresponds with ignorance in Patersons.
94. Tallacchini (n 77) at 28082. Tallacchini refers to H Jonas, The Heuristics of Fear in
M Kranzberg (ed), Ethics in an Age of Pervasive Technology (Westview Press, Boulder, CO
1980).
96. Not unlike Paterson (n 93).
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uncertainty has already found expression, with varying degrees of success, in the
now 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 modal
shift in the understanding of reality away from the atomistic towards the systemic
and relational. This shift has significant effects on law, since legal notions convey
a particular partitioning of the world.98 Moreover, [t]he relationship between the
world of natural objects and the world of legal objects is mediated, through language,
by perceptions and representations of reality.99 Accordingly, the relevance and salience of various aspects of reality changes in accordance with the different ways in
which reality is perceived, understood and organized cognitively, and consequently,
legally. In other words, a shift in the perception of reality translates into a modification in how subsets of that reality are disentangled from the whole, and under what
conditions they are categorized as being objects and/or subjects, including by the
law.100 Furthermore, a range of new elements and entities become ecologically relevant,101 and require a novel and appropriate legal translation. However, these new
entities tend to elude easy accommodation within existing legal concepts and categories, resisting fully or partially simplistic binaries and designations (such as
subject-object), which reflect the categories of an atomistic, and dualist, perception
of the world. A relational and systemic Gestalt instead invites the operation of a
different non-atomistic gaze, even when, for analytical and other purposes, foregrounding and isolating singular entities from the complex system(s) in relation to
which they participate.
This metaphysics of the legal has clear and important implications for the
alignment or lack thereof between law and ecology. When law imports and
translates reality into its own specialized ontology and language, it operates according to a particular image of the world, or Gestalt. This is a particular source of problems in the legal translation of ecological entities, 102 because the relational
ontology of the ecological Gestalt cannot be appropriately translated into a legal
ontology premised on a sharp separation between subject and object.103 This
becomes evident in the role of subjects and objects in law, and in property law in
particular, as subject owners are theoretically endowed with full sovereign
power over the object owned. Moreover, under existing property law, ecological
wholes 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 and
objects in ecological contexts by placing a strong emphasis on the idea that the beneficiaries of a common good must be burdened with well-defined duties of preservation toward posterity104. This approach restricts the possibilities of exploitation
98.
99.
100.
101.
102.
103.
104.
Tallacchini (n 1) at 1093.
Smith 1997 as quoted in Tallacchini (n 1) at 1092.
Tallacchini (n 1) at 1094. We have seen how this is a major issue raised also by EJ.
Ibid.
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implied by private property constructions, and reduces the distance between subject
and 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 platform
upon which Tallacchini develops the central elements of her legal philosophy.
First, because of the post-modern demise both of scientific certainties and of the categorical distinction between fact and value, strong emphasis is placed upon the epistemological and axiological dimension of a dialectical relationship between law and
ecological 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 a
reflexive encounter grounded in a so-called weak anthropocentric perspective.105 Law
becomes a project, which through reflexive circularity constantly readjusts and reorients itself in accordance with new ecological situations and requirements. While subject and object remain central legal concepts, reflexivity allows a process of
continuous redefinition to be established, so as iteratively to calibrate legal ontology
to the ecological Gestalt.106 Furthermore, both subject and object are integrated
within a common legal context that of common heritage so as to mirror their
mutual ecological entanglement.107 Common heritage is derived from the concept
of patrimonium, understood as a set of legal relations having economic content and
which refer to a particular legal subject. However, within the conceptual context of
patrimonium the subject cannot properly take an external, dominative perspective
on the object,108 since the subject does not own his patrimonium, but rather finds himself at the centre of the multiplicity of the legal relations that constitute it. This provides a template in which the subjective and objective dimensions are coextensive.
Furthermore, patrimonium is, in a sense, ultra-subjective: the subject cannot alienate
it in toto except mortis causa. The object however survives the extinction of the subject, because the web of legal relations endures in connection with a new subject. This
introduces an intergenerational perspective, which is in fact a crucial element of the
concept of common heritage. The main advantage that Tallacchini sees in the concept
of patrimonium concerns, ultimately, its ability to reconcile the perspective of the subject (and its ability to satisfy its needs through the use of the resources constituting the
patrimonium) and that of the object (through the limitations imposed on the subject by
the intergenerational perspective). Neither subject nor object assumes a dominant
position. From this notion of patrimonium, Tallacchini maintains, it is then possible
to 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 by
Bryan 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 Hors
la Loi. Lcologie lprove du Droit (La Dcouverte, Paris 2003).
108. This is particularly true as regards the Roman origin of the concept, which Tallacchini
tries to rescue. See Y Thomas, Res, chose et patrimoine (Note sur le rapport sujet-objet en
droit romain) (1980) 25 Archives de Philosophie du Droit 413, particularly at 422 and Ost
(n 107).
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This is the second pillar, which Tallacchini calls the ecological minimum.109 This
minimum, which does not imply minimal or little,110 requires survival to become
a fundamental, orientating value of law, an essential parameter to be used when evaluating 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 prudence, acquires central importance. In particular, Tallacchini points to three articulations
of precaution, already present in many legal systems and in international law: environmental impact assessment; the principle of conservation (which encapsulates the notion
of 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 scientific
assessment 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 first
thing to note is that both manifest a turn towards Natural Law, at least in the sense of
extracting from nature specific normative force, and in configuring that as a set of
evaluative parameters for positive law. The Natural Law turn is decidedly stronger
in EJ, and particularly in Burdons account, while Tallacchini articulates ecological
normativity in functional rather than in ethical terms. Notably moreover, both philosophies establish links with the classical tradition of Natural Law, rather than the
modern, rationalist versions,112 thus significantly reducing the role of human will
in 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 EJs
prevailing articulations emphasize subjective rights, Berrys fundamental rights may
also be understood as an expression of an objective order, albeit articulated in the
grammar of the contemporary language of rights.114 Nature, in both accounts, is imagined as an objective order within which the inter-subjective dimension of the social
unfolds: An implicit juridical sphere envelops human beings in their relationship with
nature regardless and independently of the inter-subjective juridical relationships
existing among human beings,115 drawing normativity from the nature of things.116
109. Drawing on Harts notion of minimum content of natural law (HLA Hart, The Concept
of Law (Calendon Press, Oxford 1994, 2nd edn) at 1939; Tallacchini (n 77) at 302ff.
110. The minimum requirement of survival may hence translate into a large pool of necessary
content 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 Passerin
DEntreves, Natural Law: An Introduction to Legal Philosophy (Transaction Publishers, New
Brunswick 1994) and M Villey, La Formation de la Pense 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 implying
some 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 About
Laws Ontology (Edinburgh University Press, Edinburgh 1991). But in this sense see also
Burdon (n 42) at 202ff.
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This approach further configures the arbitrary exploitation of the natural world as
being anti-juridical.117
Any framework which draws normativity from the nature of things however suffers from the ambiguities afflicting the idea of nature and other important ecological
concepts, such as ecosystem,118 ecosystem health119 and ecosystem integrity.120
This is particularly true if one accepts the idea that the concept of nature is socially
constructed, historically situated and politically negotiated.121 This ambiguity operates in particular as an inevitable inner tension within EJ,122 and has been underproblematized by EJ advocates who have focused primarily on re-articulating the
humanitynature relationship, rather than on exploring the ontological and epistemological issues associated with the idea of nature.123 Tallacchini is perhaps less vulnerable to this critique to the extent that her framework links law and ecology
functionally (through the goal of survival) and dynamically (through the transformative dialectic), and because she explicitly incorporates in her framework the contestable nature of knowledge through the concept of pluralism de vrits.
EJ and Law for Nature also employ different legal strategies in order to organize
the new ecological worldview juridically. EJ is predominantly oriented towards
assigning legal subjectivity to nature. Law for Nature operates within an objective
legal framework, hinging upon the notion of patrimonium. Such a notion, according
to Tallacchini, allows a reframing of the paradigm of appropriation and is able to capture the transformative dialectic between humanity and nature in adequate juridical
117. For example, Tallacchini (n 77); Burdon (n 42), particularly at 1334.
118. Ecosystem is indeed a controversial concept. For some reviews see FB Golley, A History
of 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 Community Ecology, in K deLaplante, B Brown and A Peacock, Philosophy of Ecology: Handbook
of 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 [] should
be viewed like calls for freedom, equality, prosperity, and enlightenment great for the campaign speech but not for serious analysis, RT Lackey, Ecosystem Management: In Search of
the Elusive Paradigm (1997/1998) 4(2) Human Ecology Review 109. For a literature review of
the ideological and policy implications of different notions of ecological integrity see S Fluker,
Ecological Integrity in Canadas National Parks: The False Promise of the Law (2010) 29
Windsor Review of Legal and Social Issues 89, particularly at 929. For the ethical implications
of 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 Democracy (Harvard University Press, Cambridge MA 2004).
122. Schillmoller and Pelizzon (n 54), emphasize for example how the problematic, ambiguous
concept of nature fuels a problematic tension between the requirement of a concept of nature
upon which to ground action, and an awareness of the impossibility of settling upon a definitive
version of what nature is, at 11.
123. Schillmoller and Pelizzon (n 54) at 21 (emphasis theirs). It must be noted that EJ advocates are aware of these issues. Cullinan for example cautions that [t]he diversity of nature and
our limited knowledge of it allow ample scope for everyone from fascists to nihilists and
beyond to claim nature supports their theories, C Cullinan, Voices of Earth Jurisprudence
An Introduction To Earth Jurisprudence: Guiding Principles And Wild Law Possibilities
(Center for Earth Jurisprudence, Orlando 2011) at 5.
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form, maintaining the balance between an anthropocentric perspective and ecological

normativity through the establishment of an insuperable link between subject and
object. The main advantage of this approach may reside in the fact that the concepts
of patrimonium and common heritage have a long history124 and are well established
both in domestic legal systems and in international law.125 However, the concept of
patrimonium seems unable to decentre the dominance of the subject, which remains
the crucial perspective. Subject and object remain ontologically autonomous and
separate, joint only within the specific context of a legal device whose contours
and rules remain inspired by patrimonial that is, economic considerations. Moreover, even the alleged ultra-subjectivity mentioned above may be better explained in
terms of intergenerational subjectivity, or in other words, in terms of a succession of
human subjects. The concept of patrimonium offers perhaps its most significant contribution as regards the intergenerational perspective, expanding the temporal scope of
the legal imagination beyond a human lifetime. The protection of the interests of the
natural world consistent with an anthropocentric perspective remains indirect and
instrumental.
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 point
for the discussion here. The key difference between the two legal philosophies is the
way in which law becomes operative and significant.126 Within an objective law framework, law operates as an organizational and structuring force attempting to harmonize potentially conflicting positions beforehand, so that the individual positions are
framed within objective canons of right conduct. By contrast, in the case of a rights
approach, law carves an abstract legitimate space for all subjective rights, emphasizing the different individual perspectives qua individuals, leaving the right conduct to
be ascertained episodically through concrete conflicts.127
From this key difference, Tallacchini draws a series of sub-differences. First, the
idea of community: the primacy of the totality over the parts characterizes objective
natural law. Natural rights, by contrast, are traditionally founded upon a reductionist
idea of community, where the parts the individual subjects are primary, and aggregated into a community only secondarily, thus underlining their original independence. However, the EJ notion of the Earth community as a community of subjects
is not intended as an aggregation of independent subjects. In Burdons account,
even human beings are understood at least at some level as being part of a network
of relationships and as interconnected members of the larger Earth community.128
Nevertheless, there is an implicit, arguably inherent, tension between the notion of
Earth 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. 136
UNCLOS) and the Moon (art. 11 Moon Treaty). See also the UNESCO World Heritage Convention and the UNESCO Declaration on the Responsibilities of the Present Generations
towards Future Generations.
126. Tallacchini (n 77) at 257ff.
127. Which is not to say that conflicts do not inevitably arise within an objective law framework, but only that right conduct is more clearly established beforehand, Tallacchini (n 77) at
2579. See also Villey (n 112).
128. See for example Burdon 2011a (n 42) at 102. Burdon 2011a (n 42) at 1045, explicitly
refers to the concept of Holon, something that is simultaneously a whole and a part. For a
longer description of the concept of Holon and for further references see ibid. at 1045.
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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, speaks
of a process of isolation and abstraction of the subject from the web of relationships
within which it exists and through which it is constituted.130
Because of this lingering legacy, a subjective rights grid may resist the ecological
relational-systemic Gestalt. Moreover, the mere attribution of a subjective right may
have unintended consequences.131 To the extent that rights maintain a set of theoretical and metaphorical characteristics a specific individualist and appropriative
grammar they may condition the underlying relationships they intend to regulate
in ways that may run contrary to the objectives pursued through the attribution of
rights. The conceptual atomism of the rights-based approach fits relationships premised on equality, symmetry, autonomy and freedom,132 central elements of modern
moral and legal philosophy. The approach seems thus maladapted to relationships of
an entirely different kind, such as those between particular, complementary, unequal,
vulnerable entities: human and non-human, living and non-living. And even if rights
are understood and imagined as being a qualitative kind, each constructed like a tailormade dress sewn to fit the diversity of situations as Berry says, rivers have river
rights, birds have bird rights etc. conceptualizing such situations in terms of subjective rights may establish a pattern of legal relations premised on a zero sum game. In
this regard, for example, Elizabeth Wolgast warns against what she calls wrong
rights, whose conceptual grid, schema and language, [bind] us, stereotyping
our reasoning.133 Indeed, Wolgast emphasizes how the language of rights is built
around a grammar of possession (a right is something which is possessed or
owned)134 and agency (rights are there to be claimed or waived), which de-emphasizes
the role of obligation and duty and assumes the capacity of the right-bearer to exercise
her 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 we
fit into it, is no longer effective. Yet we have not learned a new story, T Berry, Dream of the
Earth (Sierra Club, San Francisco 1988) at 123, as quoted in Burdon 2011a (n 42) at 116. See
also Burdon 2010 (n 42) at 116 et ff.
130. See P Grossi, Usus facti La nozione di propriet nella inaugurazione dellet nuova
(1972) 1 Quaderni Fiorentini per la Storia del Pensiero Giuridico Moderno 287; and P Grossi,
LEuropa 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 particularly E Wolgast, The Grammar Of Justice (Cornell University Press, Ithaca, NY 1987a); see
also 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 typically conceived of as possessed or owned or belonging to individuals, HLA Hart, Are There
Any Natural Rights? (1955) 64 The Philosophical Review 175 at 182 (emphasis in the original); see also Tallacchini (n 78); Grossi 1972 (n 130); M Villey, Le Droit et les Droits de
lHomme (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 Environment 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, in
which a patient is in no position to exercise such rights. He may be in pain or drugged through
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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 that
women reject the idea of an isolated, atomistic and competitive ego so dear to the
male heart. They also shy away from that staple of the liberal credo, individual
rights;136 that, from a holistic perspective it would make no more sense to assert
the rights of [] trees or animals against humans than it does to claim that the
heart has rights in its relationships with the bloodstream or lungs.137 These objections
and questions imply critical puzzles as yet unanswered by rights of nature
approaches.138
A further puzzle is implicated in the relationship between dominium and subjective
rights, which is also relevant in relation to Burdons attempted EJ reconceptualization
of private property. His careful discussion aims at giving private property radically
new content,139 albeit remaining within a reformist agenda.140 Burdon in fact distances himself from those EJ advocates who expressly consider the very institution of
private property to be incompatible with an ecocentric paradigm:141 Burdons theoretical 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 Burdons ecocentric theory of private property
exceeds the scope of this article, it seems that this stance may also prove problematic.143 By insisting on the transformation (and therefore the continuance) of private
property 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 premised on a fundamentally individualistic, appropriative and voluntaristic apprehension 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 modernity
and in the very grammar of law currently restraining the progress of environmental
law as a mode of response to complex ecological realities. Dominium may remain,
in other words, and despite Burdons attempted reformulation of private property, a
central category for the organization of reality and for the (legal) imagination of relations between humans and the non-human world. Accordingly, it is the entire concept
of private property as an organizing category that ought to be challenged rather than
merely 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? To
give him rights puts him in the role of an assertive and able individual, but this is inconsistent
with 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 in
relations 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 civil
law tradition.
144. Burdon is aware of this issue, and of the crucial distinction between negative limitations to
private property, which may be compressed by legislation or contract, but which remains
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arguably one of the archetypical foundations of legal modernity,145 and there exist a
number of subjugated, counter-hegemonic concepts of property relations, radically
opposed to the fragmentation and individual ownership of nature, which may provide
a more suitable philosophical framework for an ecological juridical theory146 and
possibilities more consistent with Burdons ultimate EJ goals.147
Another potentially vexing question as regards rights of nature approaches has to
do with the mapping of subjective rights with moral agency. It should be noted, however, that the notion of subjective right does not require that it be necessarily mapped
onto the philosophical notion of sentient beings.148 Assigning subjective rights to
non-human entities may simply serve the functional-pragmatic purpose of attributing
strong legal protection to the entity in question, without an implicit (and perhaps problematic), attribution of moral subjectivity. Stone, for example, has observed that it is
a mistake to imagine that each legal right must be mapped onto an underlying moral
right.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 instrument
of protection.150 Hence whatever entity needs protection which can best be given in
the form of a right will have the capacity to have rights.151 Emmenegger and
Tschentscher 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 inherent
value of nature. Secondly, natures rights approach offers a more suitable rationale
elastic, and re-expands when such limitations are lifted, and positive re-formulation of the entire
concept of property, so that obligations, responsibilities and limitations becomes internalized as
its 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 Preliminary
Question 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 private and public property. Given space constraints, I can only provide some references, and postpone discussion to another occasion. See, among others P Grossi, Un Altro Modo di Possedere.
Lemersione di Forme Alternative di Propriet alla Coscienza Postunitaria (Giuffr, Milano
1977); A Negri and M Hardt, Commonwealth (Harvard University Press, Cambridge MA
2010); Mattei (n 145); U Mattei, Beni comuni. Un Manifesto (IlManifestoLibri, Roma
2011); 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 sovrani, propriet 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. Burdons theoretical framework can be summarized in three points: private property is a
social relationship, and property rights ought to be contingent on their impact on others within
the community, Burdon 2011a (n 42) at 174; private property is premised on nonreciprocal
obligations and responsibilities, thus incorporating an intrinsic ethical dimension; the thing
upon which a private property relationship is established should (re-)acquire specific normative
importance (importance obliterated by Hohfelds concept of property); see Burdon 2011a
(n 42), ch 5.
148. See C Grzegorczyck, Le sujet de droit: trois hypostases (1989) 34 Archives de Philosophie
du 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.
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for the development in international environmental law, particularly as rights grant

generalized legal competence, [and] are open-ended, whereas duties are broken down
into specific rules of limited scope.153 The authors go on to underpin their preference
for 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 Schillmoller
and 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 subjective
rights and of legal subjects that may result from a rights-of-nature approach carries
the risk of a devalorization of both rights and rights-subjects, to the extent that
they may either remain largely symbolic in an overcrowded legal space, or may
remain trapped in a largely adversarial and contingent framework, disjointed from
any comprehensive idea of a common good.156
A further problematic aspect is that a strategy of rights presupposes a State-centric
political, legal and institutional architecture. State-centric institutional architecture can
be read in two ways. The first is optimistic and strategic: Since States exist, one must
find the best strategy to reach the goal of protecting nature through employing State
apparatuses, particularly legislation and the judicial enforcement of rights.157 The second is pessimistic and counter-hegemonic, and dovetails with the critique of private
property offered above: utilizing State apparatuses reinforces their role political and
legal and further legitimizes the entire scaffolding of modernity, especially since
[p]rivate property and the State are the two major legal and political institutions
that carry the dominant view of the world,158 the eco-destructive view which is
anthropocentric, appropriative and reductionist.
In fact, both the State and private property represent archetypes of legal modernity, and while they are frequently presented as radically conflicting, they actually
stand in a relationship that is symbiotic. Their opposition is fabricated and is a
precise ideological choice of the individualistic tradition [] Both archetypes
are inserted into a fundamental structure: the rule of a subject (an individual, a company, the government) over an object (a private good, an organization, a
territory).159 At root, then, rights-based strategies fail in the final analysis to
transcend the fundamental commitments of the legal modernism so thoroughly
implicated in ecological destruction and in the closely related limitations of current
environmental 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 in
nature, Schillmoller and Pelizzon (n 54) at 23.
156. See Villey (n 134) and Ost (n 107) at 18990; See also BP Taylor, Environmental Ethics
and Political Theory (1991) 23 Polity 567.
157. Indeed, in a recent presentation held in occasion of the Conference The Rule of Law for
Nature, held in Oslo on 911 May 2012, Cullinan stated that the language of rights is useful in
order to use the State machinery to protect nature, personal annotation.
158. Mattei (n 145). Others also emphasize how there is no modern society without private
property, C Camardi, Le Istituzioni del Diritto Privato Contemporaneo (Jovene, Napoli
2010) 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).
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5 CONCLUSIONS AND A CLOSING REFLECTION

EJ and Law for Nature both provide important contributions towards an ecological
grounding of law. They both identify the fundamental problems of legal modernity
in the Cartesian separation of the mind/subject from subjugated matter/object; the
Baconian epistemology of mastery; the role of property as the central legal interpretation and apprehension of reality. Both have tried to move past these modern categories by anchoring their reasoning on a new ecological Gestalt, a new systemic
and 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 an
ecocentric ethics. EJ strongly opposes any consideration of nature as an object devoid
of moral or axiological dimensions. Both Burdon and Cullinan lament the perception
of nature as mere res extensa and the legal interpretation of nature in terms of property
relations.160 Such a construction and perception of nature is considered by them to be
the fundamental premise for the appropriation and exploitation of nature. Understanding nature as a community of subjects reverses this narrative, and emphasizes how
humanity and the non-human world belong to the same moral order. The legal system
should accordingly assume an ecocentric stance.
In terms of its ethical framework, Law for Nature, by contrast, maintains a weak
anthropocentric position, wherein humans occupy a central place, but one limited and
oriented by objective limits and by the inherent demands of natural objects, captured
through 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 the
expense of other forms of life.161 Accordingly, it might be more appropriate to underscore the inevitability of a human perspective, rather than an anthropocentric one. As
Curry observes, authors who subscribe to the inevitability of anthropocentrism make
the common mistake of inferring that values must be anthropocentric [] from the
fact that when humans are the valuers [] those values are indeed necessarily anthropogenic.162 An ethical framework responsive to perspectival language sensitive to
the role of human beings as valuers could insist upon the situated participation of
humans within a whole that has no privileged centre, but rather a plurality of perspectives. 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 complement
to anthropocentrism, simply reversing the focus, but maintaining a one-sided
centrism at either pole of an oppositional anthropocentricecocentric binary.
Turning now to the question of legal strategy, EJ embraces a subjective, natural
rights approach (the three basic rights arise with existence).163 This is an approach
mitigated by positioning it within the objective framework of the Earth community.
However, the contents of such a framework and the very notion of nature deployed
in EJ analysis remain under-problematized, as noted above. Moreover, a rights of
nature approach is faced with a number of challenges, some of which have also
160. Burdon 2011a (n 42) at 4388; 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 the
original).
163. At least in its prevailing understanding, which has been the one taken as the object of the
discussion in this article. For different orientations within EJ, see n 69.
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been discussed above. Tallacchini, in her Law for Nature approach, chooses a different legal route, identifying the concept of patrimonium as the concept able to capture
in juridical form the principles of ecological normativity she outlines. As we have
seen however, this device also presents a number of problems.
What, then, might answer the problems identified here? Is there a way of deploying
key 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 the
epistemic value of ignorance and entirely consistent with a functional-pragmatic
approach that I want to offer by way of a closing reflection the doctrine of skilful
means.
The doctrine of skilful means reflects a deep Buddhist, East Asian, sensibility
towards practice and context164 in the light of which one should approach people
in a way sensitive to their current self-understanding.165 This remark is very close
to Cullinans functional-pragmatic approach, and represents a response intimately
attuned to the practical realities of a situation. Skilful means approaches require sensitivity to the situation in light of the belief that there cannot be one practice appropriate to all circumstances material and/or cultural.166 This position recognizes that
attachment to a way of addressing anything can become a limit on flexible, resourceful response. Thus Buddha invites his disciples to abandon his teaching as soon as it
may hinder, rather than help, their own enlightenment.167 Buddhas teaching even in
his own eyes is constructed as a tool to be discarded when it has exhausted its
usefulness.
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 one
strategy for a particular time and context as a form of contingent means. Whatever
its problems, a rights-based approach holds out the power of its reticulation with the
context of the State,168 and its persuasive political currency within the dominating
context of liberal philosophy, politics and law. A rights-based approach may also
help 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 the
very 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) Philosophy
East & West 559 at 560.
165. M Zimmerman, The Critique of Natural Rights and the Search for a Non-Anthropocentric
Basis 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 you
do not understand that the teaching is similar to a raft, which is for crossing over, and not for
getting hold of, quoted in Schroeder (n 164) at 562.
168. As is emerging, for example, in Bolivia (which has passed legislation enshrining rights of
nature) and Ecuador (where legally enforceable rights of nature have been enshrined in the 2008
Constitution, articles 714). Moreover, in Ecuador there has been at least one court case decided
on the basis of said Constitutional provisions. The case was decided in favour of nature (see
Naturaleza contra el Gobierno Provincial de Loja, Accin de Proteccin No. 11121-20110010).
169. Stone (n 70); Bosselmann (n 69). But see C Giagnocavo and H Goldstein, Law Reform
or World Reform (19891990) 18 McGill Law Journal 345, which argues the opposite.
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particularly ascendant global language for the reformulation of legal responses. Could
it 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 fracture
points from within?170 Might a rights-based approach carry within it the seeds of
an incrementalist mode of resistance to the current paradigm, but precisely because
it 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 a
space of contestation rich with productive uncertainty a space of productive ambivalence?171 In such a light, the approach, rather than being mistakenly seen as a paradigm shift, should perhaps be conceptualized as a form of internal resistance and as a
strategy, one that may need to be discarded as soon as it becomes a hindrance. Such
an understanding arguably keeps alive the important tension between practical action
and radical cultural change which is the level and kind of change essential for a
deep, 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 of
a start from scratch.172 While it is clear from the analysis offered above that a rightsbased 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 reformulating such an approach as being an unsettled space receptive to skilful means
may ultimately point us towards the skilful balancing of the temporal and strategic
horizons implicated in the differences between contemporary environmental law
and the alternative visions of EJ and Law for Nature approaches.
170. On the opportunities that emancipatory readings of a rights-based approach may present
see 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 quick
legal fix, hindering more comprehensive and radical change.
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Journal of Human Rights and the Environment, Vol. 4 No. 2, September 2013, pp.

Towards an ecological philosophy of law:

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by Cartesian dualism2 and sustained by the programmatic framework of Francis

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Towards an ecological philosophy of law: a comparative discussion

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of an ongoing and generalized ecological violence17 entirely consistent with and

17. See Hasley (n 15) at 219.

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environmental principle with most far-reaching potential,26 is most often framed as

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Towards an ecological philosophy of law: a comparative discussion

3.1 Earth Jurisprudence: a strategy of rights

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Journal of Human Rights and the Environment, Vol. 4 No. 2

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Journal of Human Rights and the Environment, Vol. 4 No. 2

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88. Ibid., at 1095.

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2013 The Author

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Journal of Human Rights and the Environment, Vol. 4 No. 2

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form, maintaining the balance between an anthropocentric perspective and ecological

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