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Beyond the Holy Grail of Law: Human Agency and the Anthropocene

Published onMar 15, 2023
Beyond the Holy Grail of Law: Human Agency and the Anthropocene

This symposium on the nature of ‘Asking questions’ in the Anthropocene is the sort of reflexive event which, people would say, separates academic communities from faith communities. Yet the fact that the School of Catholic Theology is the organizer shows that this is not necessarily the case. What I mean by ‘reflexivity’ is important here. It implies a way of thinking that is self-critical to the extent that we are prepared not only to accept to do something differently than we have done before, but also that we are something or someone different than we thought we were. That implies that organizing this event not only shows wisdom. It also, and this is not insignificant, requires courage.

Courage and wisdom are what we need right now, because the Anthropocene is bringing to an end the so-called Holocene, an epoch that has lasted some twelve thousand year. While our most important propositions and institutions were all formed during the Holocene, now, suddenly, these institutions and propositions seem alarmingly dysfunctional. Hence, we need to come up with something that is fit for our times. This must be an effort of all disciplines, including theology.

I tend to compare our day and age with that of Galileo Galilei (1578-1642). A contemporary of Descartes, he induced a U-turn in our thinking about the world and our spot in it. Galilei forced us to give up our earth-centered ideas and come to terms with a solar-centered system. That took some hardships, but in the end all branches of sciences were compelled to adjust to this. Today, some five centuries later, climate change, the mass extinction of animal and plant species, severe water shortages, hurricanes, forest fires, and other existential dangers, are forcing us to abandon our anthropocentric, humanistic and parochial world views. And I plead guilty to this too: lawyers, economists, psychologists and theologians, we are all – at least, let me speak for myself – teaching our students stuff that no longer fits the pressing needs of our times.

It is ironic, or better, it seems ironic that precisely the theologians, our colleagues who are associated with faith’s institutional form (and for that matter with Galilei’s seventeenth-century judges who put his work on the Index of Forbidden Books), have organized this brainstorm session, inviting us to rethink matters. As a legal scholar, my message at this occasion will be this: the case for law to pledge subservience to nature’s universal and supreme regulatory agency has never been more compelling. In other words, I suggest that law should play second fiddle to the regulatory forces of nature. And that, I suspect, is as close to a religious statement as I will ever come – perhaps the occasion of the fifteenth anniversary of the theological faculty is a fitting occasion for this ‘coming out’.

What our raging planet is telling us, is that human-made legal distinctions between humans and nature, between local and global, between private and public, and present and future, are wiping out humans and nature alike. Farmers are perishing because their land is becoming sterile. Bangladesh and Pakistan are being flooded because the Chinese are burning coal to produce our western steel. A private decision to sell live bats at a Wuhan wet market has caused a global and very public pandemic. This impels us to reflect, for decisions we take now will determine the lives of younger and future generations. There is ample evidence that the distinctions we have relied upon in the past have become dysfunctional.

 Clearly, the Anthropocene also casts doubt on some of the most fundamental presuppositions that define my discipline, law. And, as I said, the kind of stuff I teach my first-year students, for instance, is informed by precisely the dichotomies which I just claimed are false and are even killing us. Let me speak therefore about the holy grail of lawyers: the rule of law. For a start, support for the rule of law is nearly universal. It is hard to find anyone who does not, in one way or another, subscribe to the idea that the rule of law is necessary. Yet, we should be bold enough to also ask whether the rule of law might not also be a root cause for some of the misery our angry planet is currently dishing up.

 I owe you an explanation, because it is not a minor thing to question the rule of law. Let me start with the law as a source of regulation. The law is a source of regulation because it sets behavioral change in motion. Markets, societal rules, self-regulating technology also regulate in that sense: they are all sources which establish behavioral change. However, by virtue of the rule of law, law claims supremacy over these alternative regulatory sources.

 We are governed not by Elon Musk’s technologies, nor by religious communities or markets, but by law. It is the law which has the final word. In justification of this supremacy, it is said that the law is ‘made by you and me’, legislation is a product of national democratic processes. The rule of law also protects us from dictatorship by the mob. Liberalism and capitalism could not survive without the rule of law – which is an important observation in the context of what we teach our students. Conversely, the rule of law could happily function without liberalism or capitalism. That said, it is in fact a one-way relationship, but it comes as no surprise that law and liberal market economies are cozy bedfellows.

Now let us return to the question: why should the Anthropocene make us think critically about the rule of law? I can only be brief here. First, there is a general agreement that law claims supremacy over the regulatory agency of nature. Nature regulates, through the hydro and carbo cycles for instance, and law then states: that may very well be the case, but law has the final word. A good example of this order are the current heated debates in the Dutch House of Representatives, known in Dutch as De Tweede Kamer, about agricultural nitrates and the future of farming. It is the government that feels it has the right to decide if and how to take account of the problem that nature poses. It is up to us, it is our call whether we are willing to listen to nature’s pleas. In what follows, I will contrast this with three arguments.

First, only recently we have come to realize that, in fact, we’d do well to remember that we humans cannot live without nature, but that nature can live perfectly well without humans. Realizing that is not a minor insight. Thinking it through it becomes clear that nature’s regulatory systems, sometimes called ‘earth systems’, should enjoy supremacy over law. This is a common-sense perspective. Who is in charge? Not us.

Second, law is always local, and in the final analysis even international law is no different. By contrast, nature’s regulatory systems, the very systems that determine our existence, are not by nature local and cannot be detached. Natural systems are interdependent, are global, and are universal. Here is a contrast: while law ultimately regards the protection of species and habitats, or of a watercourse or ambient air quality as a local concern, it clearly it is not fit to match natural reality.

 A third point that makes me think critically about the rule of law, is that the rule of law, at least how it is currently operating in the European Union, privileges the individual at the expense of the collective. And it does so in a way that is unsustainable. In the European Union’s Charter of Fundamental Rights, ‘human dignity’ is deemed to be inviolable. With its person-centered take, the interest of the individual is always at the heart of the Union’s concerns. The pandemic has shown that individual wellbeing cannot exist without attention to collective wellbeing, and that the dichotomy between the public and the private which we hold as self-evident, often makes little sense to the extent that the separation of these domains itself undermines both the individual and the collective. 

In result, it is clear that the rule of law sits uneasily with the realities of the Anthopocene. For a legal scholar, who believes firmly in the rule of law, that is a big thing to say. One might argue that the rule of law is a human-made institution, and that it should therefore be possible to change the way it works. This is indeed what we should want to do, but the process is very difficult and slow. Laws are made democratically, and from within human-centered constitutional systems. That implies that we have the possibility of issuing a collective veto against anything we don’t like. My bet is, in a rather pessimistic way, that short-term human interest will trump long-term human interest. Never mind non-human interest. We have to bear this fact – that we hold a collective veto against change – clearly in mind. On such rare occasions that we collectively decide to act in support of more holistic goals, in the long-term interests of both humans and nature, individual rights such as the right to own property amounts to a second individual veto. Here too, the farmers are a good example. If the government were to propose a ban on farming on land adjacent to nature reserves, the farmers concerned may invoke their right to property.

All in all, there is a lot of work to do. Universities, by virtue of their independence and their expertise, should be at the forefront of that work. An event like this is a very good start, I am grateful to be part of it.

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