The Fasted-Growing Legal Movement in the World
Will it Save the World?
Earth Law is the fastest-growing legal movement in the world. This umbrella term includes a variety of movements, such as Rights of Nature, personhood for species, Guardianship frameworks, and other ecocentric approaches to creating and changing accepted legal systems. Typically, these movements are based on care, responsibility, and an understanding of how all life is connected. Many are led, partnered, and/or informed by Indigenous People.
A major component of this legal shift is grounding law in concepts like care and reciprocity. It has been argued that care holds the fabric of society together—it is the foundation of trust and cooperation. Reciprocity in Earth Law is the complete opposite of reciprocity in Western Law, where it’s known as “an eye for an eye” or “crime and punishment.” In Earth Law movements, reciprocity is based on gratitude. It’s like a pay-it-forward model but more complex because all relationships are considered. Many Indigenous cultures have some version of considering “all our relations,” placing human beings within an ecosystem, connected to the flora and fauna, the seasons and cycles; with this perspective, humans are understood as part of Nature just like other species.
Examples are abundant and exciting. In South Africa and Ecuador, the Rights of Nature were codified in their constitutions. Spain granted a lagoon legal personhood. And Aotearoa (New Zealand) wrote gound-breaking, eco-centric legislation.
When the Ministry of the Environment allowed mining in the protected Los Cedros Forest, it was a test of the Rights of Nature in Ecuador. The Constitutional Court selected the case and set a strong precedent: the Court held that mining in the protected forest was a violation of Nature’s rights and further explained that the status of the forest was not a determining factor. The Court made clear that, as with all constitutional rights, the rights of nature apply to the entire State at all times. In this case, the Court found that the government had violated its obligations (under Art. 73 of the Constitution) to take precautionary and restrictive measures to prevent the extinction of species. Los Cedros Forest is home to several endangered species, including the Spider Monkey. This sets solid precedent for future permitting and litigation in favour of Nature—the Rights of Nature laws have teeth in Ecuador.
Mar Menor is the largest saltwater lagoon in Europe, about 52 square miles. It has warm shallow waters and is separated from the Mediterranean by a strip of sand. It used to be a very popular spot for beach-goers and tourists until the beautiful lagoon was filled with algal blooms, which sucked up all the oxygen, killing fish and otherwise damaging the ecosystem. Tourists abandoned the area and locals were upset by the stench of decay, lost income, and a drop in home prices. Led by Professor of the Philosophy of Law, Teresa Vincente Giménez, and with the backing fo several NGOs, a law was drafted in 2020 to recognise “that the Mar Menor and its basin have rights to protection, conservation, maintenance, and, where appropriate, restoration…” By August 2021, advocates collected half a million signatures, thus gaining a parliamentary vote. The law worked its way through the Spanish government with massive approval, including a landslide vote of 230 to 3 in the Senate, officially making Mar Menor a legal person. The law assigns legal guardianship and representation of Mar Menor to the Public Administration with support from the local community, scientific committees, and a monitoring commission. Moreover, the law empowers any person to enforce the enumerated rights of Mar Menor.
Aotearoa (New Zealand) saw a giant leap forward in eco-centric legislation, including an apology for acts of colonialism. The Te Urewera Act (2014) was drafted with the Māori regarding their ancestral lands and the protection of an ecosystem: a mountain and the river that flows from it, the Whanganui River. The Māori, like many Indigenous cultures around the world, do not have the same concept of “property” as Western Legal systems. So they did not want to become owners or guardians of the area, because that would flip reality on its head—you cannot own something to which you fundamentally belong. Western property rights silo Nature into parts, into “resources,” and thus fail to encourage the connections of all living things. Stuck within Western legalities, the Māori opted for legal personhood for the area (not all were happy in the end). The Act creates political appointees from the Crown and the Māori to represent the ecosystem. What I find particularly interesting (and hopefully quite effective) is that public access is maintained but governed by a set of principles that reflect Tuhoe cosmology. For example, businesses that want to operate in the Te Urewera area must “negotiate friendship agreements that detail how they will ‘demonstrate loyal affection to the Te Urewera values and her need to continue her complex balancing act among living systems.’” How beautiful is that?
What if we based all our actions on creating friendships with our ecosystem? What would the world look like?
Earth law replaces dominance with interdependence and property rights with responsibilities based on care. Interconnected responsibilities regarding ecosystems better resemble the idea that taking care of one’s environment is the equivalent of taking care of oneself. The Māori say “We are the River and the River is us.”
Eco-centric perspectives are both poetic and a more accurate reflection of how the world works. If we pollute the river, we cannot drink from it, water crops with it, play in it—if we pollute the river, we pollute ourselves. The old ways of environmental law focusing on extraction and harm reduction and throwing money at people suffering from bad air and water—all of it is coming to an end.
A new paradigm is rising.
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Further Reading:
Wild Law, Cormac Cullinan (a lovely book from a South Africa Lawyer)
Radical Legal Change: Moving Toward Earth Law (my law school student note, available for free; discusses using the Public Trust Doctrine to move toward Earth Law and where most of this info comes from.)