By Julie Elizabeth Boyd, PhD Student, School of Law, Faculty of Business and Law, Liverpool John Moore’s University, Liverpool, United Kingdom
This article looks at why environmental legislation has failed to protect the environment. I argue that this is due to it being based upon anthropocentric reasoning and that there is an urgent need to adopt a more eco-centric perspective, within the pedagogy of environmental/property law. This is a radical approach, but it is an essential one to mitigate the continuing ecological destruction.
The failure of environmental law
Despite an increase in the development of environmental laws and legislation in many jurisdictions over the decades, there has been a decrease in actual environmental protection, according to a United Nations Report published in 2019, (Environmental Rule of Law: First Global Report 24th January 2019).
Although many environmental laws have been enacted to protect nature and ecological systems there is still wholesale negative impact and destruction upon the environment leading to rapid species loss and irreparable damage. This suggests that current environmental legislation is inadequate and fails to protect the environment.
Such failings are a result of many issues including laws which lack clear standards or necessary mandates, not being tailored to national and local contexts. Also, implementing ministries are often underfunded and politically weak and lives of environmental defenders are under threat making environmental rule of law a challenge for all countries (United Nations, Environmental Rule of Law: First Global Report, Executive Summary, (24th January 2019) P-viii) (Accessed 4 July 2020).
In addition, there is criticism that the very languages of environmental laws, and property laws, are too anthropocentric and need to serve the needs of nature more. Howe argues that only a connection with nature and the land would support any transformation of property law from an anthropocentric, individualist concept to a more ecocentric one (Howe, 2017).
Anthropocentrism is the problem: property law and environmental law need to work together to combat ecological breakdown
In addition, it is argued that climate change, ecological breakdown and loss of species are aggravated by environmental and property laws that are based upon anthropocentric views which prioritise human interests over the environment. In this anthropocentric world view, human beings have a right, enshrined in law, to dominate the environment at their will.
However, an eco-centric view holds that nature has intrinsic rights and as such should be protected for its own self. Unfortunately, the language used in Environmental Agreements does not bear witness to this and such laws can legitimise and facilitate exploitive and destructive attitudes and actions towards the environment resulting in rapid decline in the health of the environment and biodiversity.
However, there is a development towards a more direct ecocentric position in some judgements in several jurisdictions. One example can be seen in the Columbia Constitutional Court which found that a river had Possession Rights and in doing so declared that there was a need to “move away from legal systems in which humans are the “dominator of nature” (Community Environmental Legal Defense Fund, Press Release: Columbia Constitutional Court Finds Altrato River Possesses Rights) (accessed 4 July 2020).
Environmental law and property law are in a sense interwoven, as elements of property law can influence environmental law.
Rival approaches to thinking about environmental management
There are two schools of thought as to how and why we should regard and manage the environment, summarised by Andrew Dobson in Green Political Thought (Dobson, 2007).
“Humans ought to care for their environment because it is within our interest to do so – therefore it serves human benefit…
“The environment has an intrinsic value and worth of its own and not a means to human ends, regardless of whether it could be made a means to human ends, it still has its intrinsic value of its own.”
I argue that environmental and property law should be inspired by the second school of thought.
Placing New Ideas of Teaching Environmental Law into the Curriculum
How would this translate into adopting these ideas into the law curriculum and why should they even be considered?
Initiating new approaches into the study of environmental law in particular would equip the law student, especially those wishing to become environmental lawyers, with the knowledge and skills that will help them better understand, interpret and address environmental challenges and to enable them to serve those communities and causes they will represent. In addition, it will help them to influence and implement future law reform and develop and establish new governance systems.
All laws are based upon knowledge and understanding of societal systems, which can undergo change and revision. New knowledge is needed to understand how we are to address issues such as climate change, ecological degradation and species loss.
There is a need for changes in environmental/property law pedagogy to embrace a more eco-centric approach though such changes may present challenges to ways of thinking and doing things. Such changes are essential if the current environmental crisis is to be addressed. New laws, or at least an overhaul of current laws, are needed to reflect those changes.
The way forward is to re-structure and formulate a legal education in environmental/property law which is more eco-centric and less anthropocentric to achieve these goals.
Foundational principles for a re-appraisal of environmental and property laws
To enable environmental laws in the future to succeed within an eco-centric position, Laitos and Wologevicz (2014 – 15) have suggested that they should be built upon 3 foundations:
1. Environmental laws would not continue to rely exclusively upon assumptions and models previously used – rather they would reflect the reality of how humans behave and nature works.
2. Environmental laws would impose an affirmative duty upon humans – i.e. people would not be told what they should not do but rather what they should do by encouraging people to make positive decisions and choices.
3. Instead of relying on rules that seek to prevent humans from creating negative environmental externalities- they would create incentives for humans to create positive eco-centric externalities.
Laws could be drafted to enable better management of land to benefit our environment and all who inhabit it, including humans, animals and people in the future.
The traditional teaching of environmental/property law requires a fundamental reconceptualization, and this will not be without its challenges. It can be argued, however, that students will need to be prepared for the growing environmental challenges. It is these challenges which will require more eco-centric based laws which protect and benefit all but where nature needs to be at the centre.
Eco-centric law and the rights of indigenous peoples
This in turn would also lead to a strengthening of the rights of indigenous people whose lands are being destroyed or controlled by external agencies who are involved with destructive practices such as deforestation or introducing GMOs into the soil.
Forest Schools: a model for a new eco-centric curriculum?
We have seen the development of Forest Schools for children and young people, who are taught how to engage and connect with the natural environment. The young people who have learnt at the practical level at the Forest Schools may want to become the environmental lawyers of the future.
What they have learnt at the practical level with engagement and connection with the environment and nature may well be valuable tools to prepare them for academic education and open up a new discourse and response to how we can address the failings of environmental laws by viewing it through a different lens.
It is evident that environmental laws are failing to protect the environment and a new more eco-centric approach is needed to understand how to address these failings and to develop more robust environmental protection.
We need to move away from the current established anthropocentric approach, understanding and world view of the environment - as learnt from traditional environmental law and enshrined in legal systems - and evolve towards a more eco-centric knowledge and understanding.
These changes may take time as any effective legal reform would only be brought about by societal changes. They are already happening, however, as people react to climate change and embrace more ethical consumer choices and practices.
Any transition towards developing more eco-centric environmental laws is not without its challenges given the hugely complex subject area but education would serve as that catalyst along with re-establishing human connection with our environment.
It is certain that to continue to maintain and ingrain the traditional views of property rights and how these flow into the implementation of environmental laws will only hasten and deepen the negative impact upon the environment. There is a need for a new way of looking at and approaching these standards and re-structuring and implementing viable alternatives which can be fed into how we formulate legislation and these must begin in the classroom.
“Law is a lasting social institution, but it must also be open to change. ... responds to the changing needs of society, arising from changing social values, constitutional shifts or the need for a better legal framework in a particular field.” (Arden, 2015)
Arden, M. (2015) Common law and modern society: Keeping pace with change. Oxford: Oxford University Press
Dobson, A. (2007) Green Political Thought, (4th ed), London: Routledge
Howe, H.R., (2017) Making Wild Law Work – The Role of ‘Connection with Nature’ and Education in Developing an Ecocentric Property Law, Journal of Environmental Law 29:1, 19 – 45
Laitos, Jan G & Lauren Joseph Wolongevicz, Why Environmental Laws Fail, William and Mary Environmental Law and Policy Review, Vol 39, (2014-2015), Iss. 1, Article 2, (December 2014), Available online: https://scholarship.law.wm.edu/wmelpr/vol39/iss1/2/ (accessed 4 July 2020)
Murray, J., (2014) Earth Jurisprudence, Wild Law, Emergent Law: The Emerging Field of Ecology & Law – Part 1, Liverpool Law Review. 35:3, 215 – 231