Ecology of Law

* Book: Fritjof Capra and Ugo Mattei. The Ecology of Law. Toward a Legal System in Tune with Nature and Community. Berret-Koehler, 2015

URL = http://www.fritjofcapra.net/the-ecology-of-law/ [1]

Description

1. Fritjof Capra:

"This book is the result of many years of dialogues between Ugo and myself, and of two joint seminars about “the laws of nature and the nature of law” at Hastings College. It is the first book to present jurisprudence — the theory and philosophy of law — as an intellectual discipline with a history and conceptual structure that shows surprising parallels to those of natural science.

In particular, we show how jurisprudence, together with science, has contributed significantly to the mechanistic modern worldview; and since modernity produced the materialistic orientation and extractive mentality of the Industrial Age, which lies at the roots of today’s global crisis, we argue that both scientists and jurists must share some responsibility for the current state of the world.

At the forefront of science, meanwhile, a new paradigm has been emerging that involves a fundamental change of metaphors, from seeing the world as a machine to understanding it as a network, as well as the realization that nature sustains life through a set of ecological principles that are generative rather than extractive. A corresponding paradigm shift has not yet happened in jurisprudence, nor in the public conception of law. But it is now urgently needed. In our book we call for a profound change of legal paradigms, leading to a new ecological order in human law." (http://www.fritjofcapra.net/the-ecology-of-law/)

2.

"The most important structural solution to the rush toward final disorder is to restore some harmony between human laws and the laws of nature by giving law back to networks of communities. If the people were to understand the nature of law as an evolv­ing common, reflecting local conditions and fundamental needs, they would care about it. People would understand that the law is too important to remain in the hands of organized corporate interests. We are the makers and users of the law.

An ecological understanding of law, the only revolution pos­sible through culture and genuine civic engagement, overcomes both hierarchy and competition as “correct” narratives of the le­gal order. It seeks to capture the complex relationships among the parts and the whole—between individual entitlements, duties, rights, power, and the law—by using the metaphor of the network and of the open community sharing a purpose.

Instead of being alienated from the law governing them, the participants in [commons] are their own law-givers and en­forcers; they stand outside of any power concentration and or any claim of monopoly over violence. They overcome the artificial dis­tinction between a private and a public sphere of their lives. Inter­pretation of law is here a nonprofessional exercise in the sharing of collective meaning. Law, when it is separated from depending on power and violence, is like language, culture, or the arts: it becomes a way through which a collectivity communicates and decides about itself."

Review

David Bollier:

"The Ecology of Law: Toward a Legal System in Tune with Nature and Community, argues that we need to reconceptualize law itself and formally recognize commoning if we are going to address our many environmental problems.

The book is the work of two of the more venturesome minds in science and law – Fritjof Capra and Ugo Mattei, respectively. Capra is a physicist and systems thinker who first gained international attention in 1975 with his book The Tao of Physics, which drew linkages between modern physics and Eastern mysticism. Mattei is a well-known legal theorist of the commons, international law scholar and commons activist in Italy who teaches at Hastings College of the Law in San Francisco, and at the University of Turin. He is also deputy mayor of Ch­ieri in the northern region of Italy.

The Law of Ecology is an ambitious, big-picture account of the history of law as an artifact of the scientific, mechanical worldview – a legacy that we must transcend if we are to overcome many contemporary problems, particularly ecological disaster. The book argues that modernity as a template of thought is a serious root problem in today’s world. Among other things, it privileges the individual as supreme agent despite the harm to the collective good and ecological stability. Modernity also sees the world as governed by simplistic, observable cause-and-effect, mechanical relationships, ignoring the more subtle dimensions of life such as subjectivity, caring and meaning.

As a corrective, Capra and Mattei propose a new body of commons-based institutions recognized by law (which itself will have a different character than conventional state law).

It’s quite a treat to watch two sophisticated dissenters outline their vision of a world based on commoning and protected by a new species of “ecolaw.” Capra and Mattei start their story by sketching important parallels between natural science and jurisprudence over the course of history. Both science and law, for example, reflect shared conceptualizations of humans and nature. We still live in the cosmological world articulated by John Locke, Francis Bacon, Rene Descartes, Hugo Grotius and Thomas Hobbes, all of whom saw the world as a rational, empirically knowable order governed by atomistic individuals and mechanical principles. This worldview continues to prevail in economics, social sciences, public policy and law.

The audacity of The Ecology of Law is its claim to explain the pathologies of modernity as they affect life today: how this worldview prevents us from effectively addressing our many ecological catastrophes, and how jurisprudence as now conceived is a key element of this problem. Modernity is based on the sanctity of private property and state sovereignty, write Capra and Mattei, an order that presumes to be an “objective,” natural representation of reality. Distinctions such as “private” and “public,” and “individual” and “collective,” are also presumed to be self-evident descriptions of reality.

For those of us involved with the commons, of course, we know that this is a highly reductionist and misleading way of understanding the world. Commoning proposes more integrated categories for understanding how human beings function in the world. In actual experience, individuals are nested within collectives, and they develop and flourish as individuals only in cooperating with others. Similarly, subjective experience and objective fact are not isolated; they blur together. The either/or divisions of modernity are a kind of consensual social fiction.

Law in modern societies is one of the most important tools for affirming (misleading) categories of thought. For example, law presumes that if there is no external limit imposed on an individual citizen, each is free to act as a “rational actor” to extract as much from nature as he/she wishes. This is presumed to improve upon nature, create value and advance human progress – a social DNA that has run amok and is destroying the planet. In the worldview of modernity, individuals are imagined as the primary agents of change, and as isolated agents without history, social commitments or context. This gives individuals permission to be as self-regarding and hedonistic as they wish, a dangerous capitalist-libertarian delusion that continues to hold deep sway.

Imagining a post-capitalist future, then, is not simply about passing a new law or instituting a new set of policies. It requires that we confront our deep assumptions about worldview. What we need, Capra and Mattei argue, is a major paradigm shift in the worldview of science and law that reflects a different understanding of nature and human beings. We need to shift from a paradigm that sees the world as a machine, to a systemic, ecological paradigm that sees the world as a network of interdependencies.

We need to see that law is not something that exists independently “out there” as an objective reality. It is a socially constructed order; a power that we must reclaim. “Law is always a process of commoning,” Capra and Mattei write, reminding us that law emerges from communities of commoners. This insight can help us build a new “ecolegal order” with three strategic objectives, they argue: to disconnect law from power and violence (the nation-state); to make communities sovereign; and to make ownership generative." (http://www.resilience.org/stories/2015-10-13/highly-recommended-capra-mattei-s-the-ecology-of-law)

Discussion

David Bollier:

"S?tate law is largely philosophically hostile to, or simply noncomprehending of, the very idea of commons and commoning. Civil law as administered by the state is focused on individual, private property rights and market exchange; it is structurally focused on “things” in isolation from dynamic social relationships, history, culture and ecosystems. The struggle to inscribe a “commons-based law” within the edifice of conventional state law is therefore an ambiguous or paradoxical challenge; some say it is impossible.

And yet it is absolutely needed because the nation-state is suffering a decline in legitimacy and efficacy as global capital becomes even more powerful, and as the scale and complexity of problems outstrip the capacity of corporate and governmental bureaucracies to solve them. Many people are starting to realize that the profound problems of modern life cannot be rectified by using the tools and mindset of modernity.

The physicist Fritjof Capra and law scholar Ugo Mattei recently shed light on this problem in their 2015 book, The Ecology of Law, which sees the history of law as an artifact of the scientific, mechanical worldview.

Capra and Mattei argue that we must transcend this legacy if we are to overcome many contemporary problems, particularly ecological disaster. They criticize modern state law because it privileges the individual as the principal agent despite the harm that this produces for the collective good and ecological stability. Law also presumes that the world can be governed by simplistic, observable cause-and-effect, mechanical relationships, ignoring the more subtle dimensions of life, especially the power of human subjectivity, caring and meaning. Capra and Mattei note the important parallels between natural science and jurisprudence over the course of history. Both science and law, for example, reflect shared conceptualizations of humans and nature articulated by John Locke, Francis Bacon, Rene Descartes, Hugo Grotius and Thomas Hobbes. All of them saw a cosmological order that is rational, empirically knowable, and governed by atomistic individuals and mechanical principles. This worldview continues to prevail in economics, social sciences, public policy and law.

The Ecology of Law explains how this understanding of the world prevents us from effectively addressing our many ecological catastrophes, and how jurisprudence as now conceived is a key part of the problem. Modernity is based on the sanctity of private property and state sovereignty, write Capra and Mattei. It is an order that presumes to be an “objective,” natural representation of reality, and that regards distinctions such as “private” and “public,” and “individual” and “collective,” as self-evident descriptions of reality.

Any practicing commoner knows that this is a highly reductionist and misleading way of understanding the world. In actual experience, individuals are nested within collectives, and they develop and flourish as individuals only through cooperating with others. Similarly, subjective experience and objective fact are not isolated and separate; they blur together. The either/or divisions of modernity function as a kind of consensual social fiction, with law affirming and enforcing these (misleading) categories of thought. For example, modern law presumes that if there is no external limit imposed on an individual citizen, each should be free to act as a “rational actor” to extract as much from nature as he/she wishes. This is presumed to improve upon nature, create value and advance human progress. In the modernist worldview that law embodies, individuals are imagined as the primary agents of change, and as isolated agents without history, social commitments or context. This gives individuals permission to be self-regarding and hedonistic in the face of collective and ecological needs – a capitalist-libertarian delusion that is celebrated and defended.

Imagining a post-capitalist future, then, is not simply about passing a new law or instituting a new set of policies. It requires that we confront our deep assumptions about worldview as embodied in law. What we need, Capra and Mattei argue, is a major paradigm shift in science and law that reflects a different understanding of nature and human beings. Instead of seeing the Earth and human societies as a machine of parts, we must see them as a holistic, indivisible ecological system: the world as a network of interdependencies. Law is not something that exists independently “out there” as an objective reality. It is a socially constructed order – a power that we must reclaim. “Law is always a process of commoning,” Capra and Mattei write, reminding us that law originates in social practice and norms; it emerges from communities of commoners. This insight can help us imagine and build a new “ecolegal order” that has three strategic objectives, they argue: to disconnect law from power and violence (by reconfiguring the nationstate’s authority); to make communities sovereign (by empowering commons); and to make ownership generative (by integrating property rights with stewardship responsibilities). An eco-friendly legal order would recognize the holistic perspectives of commons in integrating costs and risks that market economies strive to externalize onto nature, communities and future generations." (https://www.foe.co.uk/sites/default/files/downloads/transnational-republics-commoning-reinventing-governance-through-emergent.pdf)