In South Africa, we are seeing environmental struggles being fought every day. Activists, communities, lawyers, school children and many others are fighting to protect the ecosystems that sustain us all.
Important battles have been won, including most recently the Deadly Air case which recognised poor air quality in South Africa’s Mpumalanga Highveld region as a breach of residents’ Constitutional right to an environment that is not harmful to their health and well-being.
But despite these successes, we are not winning the war. One of the main reasons for the ongoing environmental damage is because our legal and economic systems have been designed to promote human exploitation of Earth and to prioritise endless economic growth.
In order for humanity to flourish and successfully address the huge challenges facing us in the 21st century, including the climate crisis and accelerating loss of wild species and ecological communities, we need to transform our societies. We need societies that prioritise living in harmony within Nature, and the ethics of care and reciprocity. A world where all beings are protected and respected, and human systems are aligned with Earth systems, and guide people to act in the best interests of the whole Earth community. It is a world where the needs of all are met, restorative justice is applied to heal past and continuing injustices, and human well-being is improved by enhancing ecological health.
This is the kind of world we need. However, achieving this and addressing the most significant ecological and societal challenges of the 21st century, cannot be done within the existing legal and institutional frameworks. To get there, we need systemic change. Earth Jurisprudence is a transformative approach to achieving this vision for ecologically viable societies. It advocates consciously realigning societies so that we conform with the laws of Nature and remain within planetary boundaries, for the sake of human well-being and that of all members of the Earth Community.
Existing environmental laws have been hard fought for and used in progressive ways in South Africa and around the world. The significant rise in climate litigation over the past decade is an example of this. However, the courts cannot stop the climate, biodiversity, and associated societal, crises from accelerating because the legal system itself is part of the problem. The entire structure of our legal systems is designed to uphold human interests exclusively, to protect and encourage profit-seeking, and to aid in the transformation of Nature into resources and private property. The legal system ensures that decision-making prioritises economic considerations, and licences, permits and private property laws legitimise the very processes which allow the degradation of biodiversity and continued emission of enormous amounts of greenhouse gases. This places our governance systems out of sync with the ways of Earth.
The scale, depth and urgency of the problem means that we need systemic change. Only in this way can we begin to address the underlying causes of the continued exploitation and pollution of our environments. Earth Jurisprudence explains how this can be done.
Earth Jurisprudence is a philosophical approach which contends that human governance and legal systems must operate within the bounds, and in alignment with, ecological and evolutionary systems. It recognises that humans are a part of, and rely on, Nature (the Earth Community). We are neither separate nor superior. All members of the Earth Community are subjects, not objects, of the law, and have inalienable rights to exist and to interact freely with other beings.
This approach not only recognises the rights of other members of the Earth Community, but also imposes legal duties on humans to respect those rights and to participate in maintaining the integrity, functioning, health and evolution of ecosystems. This would allow for the flourishing of life, diversity and healthy relationships instead of legitimising the exploitation of Earth. This encourages a system of democratic self-determination in which people aim to live well by contributing to the integrity and health of the ecological communities within which they live, and in which local communities have the right to decide how to do so. The concept of ‘living well’ or ‘well-being’ (sumak kawsay), referred to in the Constitution of Ecuador, is an example of this approach.
What would a world with Earth Jurisprudence look like?
While this concept is in many ways new and has grown substantially over the past 20 years, it can also be found in ancient traditions, particularly in indigenous laws and cosmologies. In practice, there is no single Earth Jurisprudence but a diversity of ‘bio-culturally specific’ Earth Jurisprudences, each of which reflect a particular human community’s understanding of how to regulate itself as part of the Earth Community.
Here are some examples of what may be contained in such an approach:
- Traditional science, indigenous knowledge and new laws would be integrated in order to determine how best to give effect to the duty to respect and live in harmony within Nature.
- Decision-making would be based on what best promotes the integrity and vitality of the whole Earth Community and would give power to local communities to enact these decisions.
- People would aspire to reach their full potential as human beings by enhancing their relationships with other people, animals and places rather than through consumerism and power.
- Rights of Nature would be recognised and protected by constitutions and legislation, including enhanced provisions for animal rights.
- Large-scale ecosystem restoration would be promoted and financed.
- Restorative, distributive and procedural justice measures would be implemented for communities worst affected by environmental and others forms of injustice.
By Cormac Cullinan, Founder and Director of the Wild Law Institute (WLI)