Creating a New Story for Law and Governance

This topic contains 6 replies, has 5 voices, and was last updated by Profile photo of Lisa Mead Lisa Mead 2 years, 10 months ago.

Viewing 7 posts - 1 through 7 (of 7 total)
  • Author
    Posts
  • #1319
    Profile photo of Lisa Mead
    Lisa Mead
    Keymaster

    Several Earth Law Alliance members (Polly Higgins, Mumta Ito, Bronwyn Lay and Lisa Mead) will be attending the New Story Summit being hosted by the Findhorn Foundation in Scotland from 27 Sept – 3rd October 2014. “The Summit is designed to support the emergence of a coherent new story for humanity and to produce practical, collaborative ways to live this new story”.
    So what is the coherent new story for law and governance, and how do our new stories for law and governance meld with the new stories emerging in ecology, economy, politics, culture, community building… In short, the new story of human life on Earth?
    Your considered feedback on this question will be of great assistance as we start to conceive a broad picture of New Law and New Governance.

    #1335
    Profile photo of Lisa Mead
    Lisa Mead
    Keymaster

    One comment so far from Traudlinde Aigner, a retired biologist (zoology, biochemistry) who told me that she is “illiterate” in digital affairs so has permitted me to post her comment on her behalf.

    FYI, a few months ago, Traudlinde sent me details of a gas drilling site in Austria, on the immediate periphery of a village right behind a ground-water bathing pond and in a protected area close to a river. She pointed out that “given the fact, that local laws and international conventions like Ramsar-, Aarhus-, Human-rights-conventions etc. are simply ignored, bent or violated by governments when ‘big money’ wants to drill for dirty energy like oil, gas (‘conventional’, or ‘inconventional’ by hydraulic fracking) or when Agro&chemical industry grabs for land, seeds etc. – worldwide –, I propose to first of all give priority to tackle this problem of already existing laws and conventions being violated.”

    Her most recent message, in response to my question above, is as follows:

    “Hi Lisa,

    Thank you for the news!

    I am sorry, I have not yet entered actively the forum. I pass my 24 hours by checking the gas-drilling activities around me, trying to keep informed and understand what’s going on on the „ planet“, giving now and then some hours to my children, friends, feeding birds and cat etc. – so there is little space for another computerized activity.

    But I would like to stress, there should be a strong focus on corruption – intellectual & material corruption, which are sort of „Siamese Twins“, embracing a wide range of people and a wide range of material advantages (from zero $ to millions) and a mish-mash of almost inseparable connections – as difficult to separate as to pull out single alga from an alga-clouded pool.

    Best regards and good meetings at the summit
    Traudlinde Aigner”

    #1336
    Profile photo of Michael Baker
    Michael Baker
    Participant

    Lisa
    Your thread begins “So what is the coherent new story for law and governance, and how do our new stories for law and governance meld with the new stories emerging in ecology, economy, politics, culture, community building… In short, the new story of human life on Earth?”

    I want to make a contribution and suggest a new angle has come into sharp focus.

    With the awakening brought about through internet as well as a more general growing sense of awareness (might this be a new seeding of the human race?), many more people are seeking to make informed choices and take responsibility for leading their own lives in a different way.

    The “Top down” leadership is exposing a structure which has always been slow to change and embrace new frontiers of human discovery and behaviour. Democratic structures in the U.K. for example are still very much influenced by a male public school background with its built in “control, win /loose, survival mind set.

    Now however there is a horizontal wave of awareness acting through people in a very different way to the top down of the last century.

    The traditional “We’ve always done it that way” of Government and universities has been the model that was established at the beginning of democracy as we know it.

    It appears to have a built in resistance factor. It is because of this reluctance to let go of the hold onto established patterns that we find it so difficult to make the kind of quantum leap required right now. Research universities also maintain a reluctance to explore new thinking across disciplines and departments so the education curriculum is becoming very outdated Should we be focusing our attention on advocating more strongly the need for new ways of decision making in democracy and showing that they can be trusted?

    I believe the legal system is very much under this influence of all this and up till the present time has had to follow rather than lead simply because government is the law maker.How may the legal system speed up the change?)

    In our New Story initiative, anthropocentrism is as major “philosophy” than needs addressing head on.. However here academia swoops again and tries to confuse, analyse and divert attention by distinctions between types of anthropocentrism and then further analyses human behaviour by defining Biotic ethics – again tempting participants into “head” discussion. Throughout most of the academic threads of philosophy there appears to be a remarkable absence of spiritually based discussion because there is still a wall as far as spirituality and religion is concerned. However the gap between science and spirituality is narrowing although more effort needs to be put into this. At least Pope Francis has been facing it recently. Should influential religious leaders be asked to become more pro-active on this? The Dalai Llama certainly has!

    There appears to be a massive movement from non academia who are coming from the heart brain instead of the head and finding it difficult to feel that as yet they are being heard in the sense they have a valid contribution to make in society but are simply not taken seriously or give opportunities to take responsibility. Should they be given more opportunity and encouragement to sharpen up and focus intent? How?

    I feel there are two priorities. One is to build a strong public platform of Environmental Ethics embodying moral principles and improve decision making where government interfaces with science using these ethics and making this decision making transparent under public view.
    The other, is to re frame decision making in society from bottom up (much as indigenous communities do in the Americas) by seeding and encouraging local community to govern.

    The Transition Town movement has got some good working examples of this. Local initiatives like these should be given the green light to develop and spread even to the point of there being government start up funding available.

    The other possibility for evolution that is receiving attention is in the field of epigenetics, and it is recognized now that parts of the genetic chain can be switched on or off depending on environment circumstances. I believe bee and ant have an important link here for they have a part of the genetic chain swithched on that is dormant in human. Survival of the colony is more important than individual survival.
    Hope this is a useful perspective.
    Best wishes, Michael

    #1339
    Profile photo of Bronwyn Lay
    Bronwyn Lay
    Participant

    Hi,

    I’ve been thinking through the questions raised in this thread.

    Law has come to be understood as a series of regulations and administrations and this is particularly evidenced in environmental law. It makes it easy to dismiss current law as being impotent and violent.

    Instead I think of the greatest jurists in history where interpretation was central to the evolution of law. It is ‘interpretation’ that gifts law creative surprise and this is where the new story finds a place within law. Interpretation, for the best jurists, is a form of contemplation where reason is a gift to the facts, rather than a tyranny over them. Case law, precedents, can be like ancestral voices speaking through law and sometimes the accumulation of knowledge asks for a rupture when the facts ask for it. For example the jurisprudence around slavery.

    While spirituality and the law have never been great friends in the Western tradition, it’s worthwhile reading Weeramantry J’s dissenting opinion in the Danude case at the ICJ for a run down of how religious norms and spiritual traditions play a heavy role in his legal reasoning, which argues sustainable development is international customary law. For the moment this is a minority opinion but often minority opinions rise up from the dusty past to face the future when facts demand they be heard. Nature and ecology are becoming central to many cases across the world and enter the courtroom with more presence than ever before. This is where the interpretative act that translates these voices that arrive in the courtroom, which do not possess language or text, is important for recognition of nature, of earth and ecological communities.

    There does exist, as Robert Cover so eloquently explains, jurispathy in the interpretative act. Via the act of interpretation the ‘law’ kills any alterative legal tradition or position that contradicts its interest, tied as they can be to state power and now to trade law. But he also speaks of ‘jurisgeneration’ – which is the creating and nurturing norms by communities that then become law through interpretation. The act of creative surprise in law requires resistance against jurispathy and acknowledgment of the incredible riches of norms and cultures that nurture relationships with nature and materiality with equilibrium.

    I wonder if, rather than turning away from the current structures of law and governance wholesale due to the violence they are complicit with, an excavating with respect of the possibilities of law and its history will give courage to those jurists and lawyers labouring to bring about protection and recognition of nature. I wonder if the crafting of what it means to be a jurist, a lawyer, might some important in nurturing the possibility of courageous, and contemplative interpretive legal cultures.

    These are some of the thoughts that arise when I reflect on this thread – and I think the question of the encounter between Nature and law as one of exchange and symbiosis is one of the most vital of our times,

    Thanks for listening and I look forward to the growth of these conversations at the New Story Summit and beyond,

    Bronwyn

    #1340
    Profile photo of Pat Siemen
    Pat Siemen
    Participant

    Thanks for your question, Lisa. I think a coherent story for law has to start at the same origin where everything starts: within the dynamic cosmogenesis. For law to meet the ecological challenges of today it must do so from a scientific framework that recognizes the complexity of an evolving Earth community. That recognition specifically includes acknowledging that we humans belong to, and are not separate from the rest of the Earth processes and species that sustain us. For this to happen, our societies and cultures must learn to see ourselves as belonging to a series of nested communities, ultimately forming a single comprehensive community. Many indigenous peoples live this way and teach the concepts of a single web of life and “all my relations”. I don’t think we can create lasting legal or governance systems that will meet the challenges of today’s ecological and social collapses without a transformation of our consciousness. This shift in awareness will be developed by experiences of interdependence, rather than individualism. If we observe how healthy bioregions and ecosystems cooperate and fluctuate, we will have some sense of the flexibility needed for laws governing human behavior. Scientists in all fields can help us understand the long-term balance that nature achieves.

    But a coherent story for law will not be effective unless the individuals and communities who create the laws also understand their humble place within the Universe and Earth community as well. Laws are designed to protect and preserve societal values and to do justice. It is up to us to create the legal structures that will give priority to protecting the health of dynamic ecosystems and species over economic excess. This requires a capacity for flexibility and putting the good of the commons before the wants of individuals. People must insist that nature and its systems are more than property to be bought and sold. And when we do “own” land or water we need to have a legal duty to protect and care for it so it can flourish and be handed on to future generations of all species who live there.

    I think Thomas Berry’s premise that the Universe has a psychic/spiritual dimension as well as physical/matter is an essential component to a coherent story for law. Science doesn’t recognize this dynamism and neither do current laws. Indigenous peoples in many lands are working diligently to protect sites that have been sacred to them for eons. They understand the energy embedded within those sites. Western laws generally ignore this type of knowing and experience; they give no credence to sacred sites or natural places of worship. This has to change. Even more so, our laws must acknowledge the subjectivity, the interiority and intrinsic value, within every being and proceed with care and balance. Governance systems need to recognize and protect these sources of nourishment that we humans need if our lives are to have meaning.

    This will be a challenge. The more we can create laws that are consistent with a healthy functioning of various bioregions’ unique geo-biological life systems, the closer we can get to recognizing the differentiated gifts already existing within the species and ecosystems living in the bioregion.

    Honoring the viability of differentiated species, ecosystems, bioregions, oceans, atmosphere – of the entire Earth community through law and governance is a major shift. It can only happen if enough of us are evolved sufficiently to demand such changes. Protecting natural systems won’t work well in a prosecutor/defense scenario where someone wins and someone loses. There has to be a restorative justice approach built into the system as well. Negotiation, arbitration, giving every entity a voice at the table of decision-making is essential.

    In the meantime, while we work toward this type of governance, we must also address the current egregious violations to Nature’s well-being. I believe certain irreversible crimes against Nature should be held to criminal law jurisdiction. Assigning civil damages is not sufficient, especially when the fines can be written off as the price of doing business.

    In summary, an Earth law or Earth jurisprudence system will protect and preserve both the material and spiritual dimensions of humans and natural entities – recognizing our common existence within an ever evolving Universe and Earth system. It will develop alternative and restorative justice procedures. It will also investigate, charge, indict and execute criminal penalties on those who intentionally and deliberately violate the physical and spiritual existence and wellbeing of all whose home is the Earth. No small task. Thus the need for a coherent story to carry us across the new terrain.

    #1348
    Profile photo of Colin Robertson
    Colin Robertson
    Participant

    Hi!

    You are meeting in Findhorn to discuss ideas for taking forward rights of nature. I cannot be with you, but I have put together some ideas.

    There are currently many strands of thought that are circulating on the way forward, and many groups are questioning the current balance between human beings and nature. A lot has already been done, and continues to be done, to deal with environmental issues. One can see that, for example, from the fields of activity and legislative texts listed on the website of Commission DG Environment (http://ec.europa.eu/dgs/environment/index_en.htm). These policies relate primarily to the ‘chemistry’ side of the environment and material factors, often linked to production. Each policy area can be scrutinised with an eye to further developments. This is one area of activity to propose, and apply at European, national and local level.

    Environmental law is about the human-natural world relationship and conscious awareness of damage to our surroundings that harm us directly and indirectly. Our laws are changed to influence human behaviour. Duties and obligations are imposed. This can be characterised as a ‘duties to nature approach’ (DtN) but a full concept of DtN implies that nature has rights. It places obligations on humans to respect those rights. The obligations can be set out as principles, as proposed in Charters for rights of nature and the Earth, etc. These principles could be incorporated into law and used for the purpose of interpreting, applying and constructing the law. That can be done through case-law by the courts, or through legislative act, such as a charter. However, if one can move to rule-making the principles are strengthened, but rules connect to specific facts and circumstances and that requires careful and detailed policy-making. It can be difficult to make the jump from the abstract to the specific. It can be easier to tackle individual specific items through rules created with principles in mind. One thinks of the Ecuador v Bolivia experiences as recounted.

    There is an emphasis placed on rights of nature. That implies making the earth and nature a ‘subject’ of law and not an ‘object’. It implies legal personality and methods of representation of nature in court cases, to promote, defend and intervene and have its viewpoint presented. Since unborn children, insane persons, deceased persons can have their rights protected, there is no formal impossibility. Abstract entities such as economic groupings around a task are already given legal personality (corporations, etc) so it is odd that physical manifestations in nature are treated differently. But just what is to be given personality? How does one decide. Can the unit be an ecosystem?

    Law is human centred and for humans. How might that be changed? It is a cultural tradition, linked to religion, philosophy, etc. If we see change as part of a circular process we can identify elements and consider how altering the perspective at each level might change the overall thrust. Imagine the following as a circle:

    – philosophy – theory – planning – objectives – strategy – action – benchmarks – effects – review – adapt philosophy – theory – etc

    An action plan is needed, an overall plan with subsidiary plans. These link into the circle above. A context is needed, to be realistic, and the concept of landscape provides a vehicle within which to plan, as part of the above circle. Different landscapes can have different plans, also as part of the above circle, etc.

    Where does one wish to arrive at? What would be an ideal result if every wish was fulfilled as regards nature? Could there be different results for different landscapes?

    Are you ready to be preyed on and eaten by wildlife when you go out of your house? (Full wildness) Do you prefer larger wildlife parks? (Domesticated wildness) Do you want ‘wilder’ areas in town and country (Wildlaw).

    Are you prepared to work physically through digging, making fences, planting trees, or do you prefer to talk about the ideas. Do you know about Carrifran ancient forest project? Would you help make more such projects, as an objective to restoring nature? Have you ‘really’ looked at the landscapes around you with care? How healthy do they seem to you? How old are the trees? What species of plant and animal do you see (or not see)?

    If one starts with the ‘end goals’ and ‘end results’, where would one hope to arrive at? It provides an objective to aim for, and one can create plans to move towards it. Can these plans be turned into quantifiable steps and actions. If so, one can lobby for them in terms of concrete action.

    The draft directive proposed for a Rights of Nature ECI can be deconstructed for its parts and each part can be allocated to an approach: rights of nature or duties to nature, or other. It is a discussion instrument, for reflection, teaching concepts, to agree or disagree. The draft is embedded in EU method and language, and it is intended to make suggestions that could be acted on in practical administration. Existing law is not per se changed, but nature rights become built in to the processes of law and business. By a process of interpretation they infiltrate into the structures. Short-term cash flow and profit is laid alongside long-term ecology and nature protection.

    Each branch of a legal system, and each legal order, could be analysed for its impact on nature: negative, neutral, positive, and a nature dimension could be added to it. The UKELA/GAIA review of law in terms of Earth principles began that approach.

    It is useful to consider law as it applies to ecology as a subject of study. Something to work on.

    The ECI has started; it is difficult to manage but will be kept alive in the EU Forum. The UN dimension needs to be strengthened. Consensus on Earth principles exists in the form of the draft charters, etc, but the essential support required to mainstream them is weak. The experience of Ecuador is revealing. So, what is required to change ideas?

    Lastly, part of the issue is to plan for a changed climate now. We know it is coming. What is changing; what can be done?

    This brings one to water, drought and flooding.

    Specific planning is needed. Funds are needed for groups to raise concerns. Advocates are needed to explain and argue the concerns. Solutions are needed so people and nature can survive together. There are plenty of technological solutions that have already been invented and are being demonstrated in many places. But do we want to take notice?

    The Almeria river in Spain is a current example of impending ecological disaster, it seems. Make it a test case to expound all the issues concerning rights of nature. Draw on past cases, for example the Whanganui river system legal personality in New Zealand.

    The Almeria river looks like an example of ecocide in the making. It forms part of the case for a law of ecocide; test it on principles of natural justice and legal theory. Seek funds, legal aid ….

    Law is above all about power; who has it and who does not. The stronger prevail. They have access to larger funds usually. Where should be the balance? How can the weak protect themselves? Is nature strong or weak?

    Have a successful conference.

    Colin Robertson,
    Luxembourg

    #1350
    Profile photo of Lisa Mead
    Lisa Mead
    Keymaster

    Hi all,
    First – thanks to all who have contributed to the New Story thread so far.
    I’m reporting back after the New Story Summit in Findhorn, Scotland, which concluded on Friday 3rd October. Condensing all of the many interesting discussions and diverse happenings that took place during the Summit would be a challenge, to say that least, so I will focus on the brief “outcome” document for New Law that J Kim Wright of Cutting Edge Law (http://www.cuttingedgelaw.com) presented on the closing afternoon of the Summit. Along with a number of individuals who reported back on their vision for various aspects of human society, Kim was asked to present a brief vision of what she imagined the legal system would look like in 2050. This was Kim’s personal synthesis of some of the discussions that had been held amongst the small legal contingent present. It was necessarily brief as Kim was given only one minute (literally) to present her future vision! I reproduce it below for your reflection and comment.

    “The New Legal System
    At Findhorn, we worked on a vision of the future in all professions and areas of society. I was asked to describe the new legal system from the future…in less than a minute. This was my quick outline:

    The seeds of the 90’s and early 2000’s have flourished.

    Lawyers are now recognized for our true purpose: peacemaking, problem-solving and healing the wounds of the community.

    Lawmakers serve, conscious of all the stakeholders, and of our interconnectedness with Nature and each other.

    Law enforcement focuses on Right Relationships, working in partnership with the community to foster love and protect safety.

    Judges are wise leaders who help to balance competing values and hold everyone accountable, with love, compassion and empathy.

    Prisons are a part of our past. Now we focus on rehabilitation, healing and reconnection for all members of society.

    Law students are trained in holistic thinking and art is part of the core curriculum.

    Our history of restorative practices and nonviolent communication in schools has helped to produce citizens who tell their truths, take responsibility and accept accountability.

    There are no more lawyer jokes. They’re not funny any more.”

Viewing 7 posts - 1 through 7 (of 7 total)

You must be logged in to reply to this topic.



Receive Earth Law Updates



Newsletter Archive

Skip to toolbar