by Professor Emeritus Nimal Gunatilleke,
University of Peradeniya

Jurisprudence, as a layman like myself would understand, refers to the knowledge of the law – the norms and rules that govern our lives. In legal parlance, it is defined as the branch of philosophy concerned with the law and the principles that guide the judiciary to make the decisions it does.

Earth Jurisprudence

Earth Jurisprudence is an emerging branch of legal philosophy that critiques law from an Earth-centred perspective and proposes new approaches to law, economics, and governance. It perceives human beings only as a part of the wider Earth Community and was developed as a response to the present environmental crisis. Earth Jurisprudence has drawn its knowledge base from different disciplines of studies, like basic sciences, earth science, and Common Law jurisprudence.

In a sense, Earth Jurisprudence represents an all-embracing ecological theory of law. It was first proposed in 2001 by the cultural historian and poet Thomas Berry, who is considered the ‘father of Earth Jurisprudence’. He held the view that ‘we must understand that our own well-being can be achieved only through the well-being of the entire natural world around us’. Thomas Berry proposed that society’s laws should derive from the laws of nature (Great Laws), explaining that ‘the universe is a communion of subjects, not a collection of objects to be owned and used or misused’.

The rationale of Earth Jurisprudence is rooted in the philosophy of “Deep Ecology” in which all living beings have a moral and ethical claim, regardless of their utility value to humanity. For most of human history, human societies across our planet have seen life from an Earth-centred, rather than a human-centred, perspective. This is evident among indigenous and traditional communities who continue to derive their ethics, customary laws, and governance systems from the laws of Mother Earth or Natural Laws.

It is becoming patently clear that the prevailing human laws should be consistent with, and therefore, need to be realigned with the laws of Mother Earth if we are to live in harmony on our home planet well within its planetary boundaries. The starting point is the recognition that the laws of the Earth are primary. They govern life on the planet and human laws should be derived from these.

This is clear for Indigenous peoples whose languages, customary laws, and governance systems are rooted in the understanding that nature regulates the order of living processes in which humans are inextricably embedded. Thus, to maintain health and well-being for people and the planet, humans need to comply with the dynamics of nature. For indigenous peoples, the relationship between land and species is regarded as sacred and involves reciprocity.

Many of the world’s religious and spiritual traditions offer insights consistent with a nature’s rights worldview. Eastern religious and philosophical traditions embrace a holistic conception of spirituality that includes the Earth. It was Arahath Mahinda, the son of the Emperor of India, over two thousand years ago, who said to King Devanampiya Tissa, at Mihintale, “O’ great king, the beasts that roam the forest and birds that fly the skies have the same right to this land as you. The land belongs to the people and to all other living things, and you are not its owner but only its guardian.”

Earth Jurisprudence calls on us to recognize that Nature is and should be, the source of human laws, ethics, and how we govern ourselves. Earth Jurisprudence calls for us to transform the currently held human-centred (anthropocentric) perspectives to Earth-centred (eco-centric) perceptions of our place on Earth and how we should conduct our lives.

Earth Jurisprudence has been increasingly recognized and promoted worldwide by legal scholars, the United Nations, lawmakers, philosophers, ecological economists, and other experts as a foundation for Earth-centred governance, including laws and economic systems that protect the fundamental rights of nature. Therefore, the primary purpose of legal and governance systems must be to ensure that people protect and contribute to the integrity, health, and well-being of the entire Earth Community. Earth Jurisprudence can be described as a crucial alternative concept of law and governance for sustainability.

Rights of Nature

A novel approach to environmental protection has emerged in the law, known as the ‘Rights of Nature’ (RoN). The rights of nature, or Earth rights, is a legal and jurisprudential theory that describes inherent rights as associated with ecosystems and species, akin to the concept of fundamental human rights. The rights of nature concept challenges that the 20th-century laws are generally grounded in a flawed frame of nature as a ‘resource’ to be owned, exploited, and degraded.

In this currently dominant legal approach world over, only human beings and some of their artificial creations, including corporations, are ‘legal persons’ with rights, while other organisms and nature are objects to be owned or consumed.

In contrast, the RoN crusade considers all beings, organic and inorganic—including organisms, species, ecosystems, land, air, water, and Earth itself—to be members of a planetary community. These beings are in relationships of interdependence with one another. They all have rights, and responsibilities, in their own ways. RoN laws recog nize a variety of non-human entities as holders of rights, from animals to rivers to ecosystems to the entire planet. Different species or parts of nature, all will have different rights, i.e. rivers have river rights, birds have bird rights, and humans have human rights.

Rights of Nature proponents argue that nature is a legal subject possessing inherent rights-based laws grounded in the rights of nature that direct humanity to act appropriately and, in a way, consistent with modern, system-based science, which demonstrates that humans and the natural world are fundamentally interconnected. The Rights of Nature ideology takes the view that human beings need to stop treating nature as objects or property and accordingly change their perception of nature.

This school of thought is underpinned by two basic lines of reasoning. First, since the recognition of human rights is based in part on the philosophical belief that those rights emanate from humanity’s own existence, logically, so too do inherent rights of the natural world arise from the natural world’s own existence. A second and more pragmatic argument asserts that the survival of humans depends on healthy ecosystems, and so protection of nature’s rights, in turn, advances human rights and well-being.

From a rights of nature perspective, most environmental laws of the 20th century are based on an outmoded framework that considers nature to be composed of separate and independent parts, rather than components of a larger whole. The increasing importance of this new way of thinking, situated at the intersection of environmental law and ethics, is directly influenced by growing concerns about the climate and biodiversity crises that we experience today.

For example, the Gaia hypothesis, named after the ancient Greek goddess of Earth, posits that Earth and its biological systems behave as a huge single entity/organism. This entity has closely controlled self-regulatory negative feedback loops that keep the conditions on the planet within boundaries that are favorable to life. Therefore, the Rights of Nature recognizes that non-human elements should be treated as legal entities with the right to exist, thrive, regenerate, and evolve.

Like human rights, the Rights of Nature are inherent, inalienable rights that arise from the mere existence of the rights holder. This means that every being or aspect of nature (including people) must, at a minimum, have the right to exist, the right to occupy space, and the right to interact with other beings in a manner that allows them to fulfill their unique role in ecological and evolutionary processes.

Humans have co-evolved in relationship with other beings, and this community of life is the fountain of our well-being. Therefore, the primary purpose of legal and governance systems must be to ensure that people protect and contribute to the integrity, health, and well-being of the entire Earth Community.

This implies transforming nature from a legal object into a legal subject, possessing its own inherent rights, regardless of its use for humanity. It would then be an ecocentric paradigm shift in our legal system. This ecocentric discourse shows striking similarities with human rights law. The Rights of Nature is one legal tool, among others, through which this paradigm shift can be realized.

Recent recognition of the Rights of Nature within Western legal systems is an important stepping stone towards an ecocentric orientation. Until now, the legal approach towards nature has been too ‘anthropocentric’ and heavily focused on neoliberal sustainable development concepts. It means that nature is perceived from a human perspective and as an object of law (e.g., as property or a source of raw materials). At present, Nature is seen as something that has resources (‘natural resources’) that are meant to benefit human beings having a commodifiable and disposable value.

Legal systems around the world for well over centuries have treated land and nature as “property”. Something that is considered property confers upon the property owner the right to exploit it for profit and in turn, damage or destroy it. Thus, those who “own” wetlands, forestland, and other ecosystems and natural communities, are largely permitted to use them however they wish, even if that includes destroying the health and wellbeing of nature. Laws and contracts are written to protect the property rights of individuals, corporations, and other legal entities. As such, environmental protection laws legalize environmental harm by regulating how much pollution or destruction of nature can occur within the law. Under such law, nature and all of its non-human elements have no legal standing.

Rather than treating nature as property under the current law, the rights of nature acknowledge that nature in all its life forms has the right to exist, persist, maintain, and regenerate its vital cycles.

Nature as Rights-bearing Entities and Wild Laws

A fundamental principle of Earth Jurisprudence is that all components of Nature, including plants, animals, rivers, and even entire species or ecosystems, should be granted legal personality in the same way as human beings. Earth Jurisprudence or Wild law is an emerging theory of law and governance that seeks to evolve law that recognizes our relationship with the broader Earth community.

Earth Jurisprudence aspires to promote a greater respect for nature and all living things on Earth, aiming to intertwine Earth’s natural law with the body of law that governs humanity. Wild Laws are human-made laws that are aligned with the laws of Nature and promote the flourishing of life, diversity, and healthy relationships, instead of legitimizing human exploitation of Earth. Wild laws reflect the understanding that, in order for humans to flourish, we must recognize and respect the rights of every member of the Earth community. Since, human beings are deeply interconnected with and dependent on nature, the ecocentric concept is proposed as a standard and measure for human law.

When we talk about the Rights of Nature, it means our recognition that ecosystems and natural communities are not merely property that can be owned. Rather, they are entities that have an independent and inalienable right to exist and flourish. Laws recognizing the Rights of Nature change the status of ecosystems and natural communities to being recognized as rights-bearing entities, right holders, or Juristic persons. They have rights and obligations according to the law of the land, just like any natural person. Any harm to these bodies would be treated in the same way as if inflicted on human beings.

The recognition of the Rights of Nature has been established through several constitutional, legislative, and judicial enactments in several countries that aim to provide legal protection for non-human entities and natural systems. People, communities, and governments have the authority to defend those rights on behalf of ecosystems and natural communities.

(To be continued)