Have humans put themselves outside of the laws of nature?
This was perhaps the most striking question raised by Ugo Mattei in the talk “When the Rule of Law is Illegal”, delivered on January 28, 2010 at the Centre for Transnational Legal Studies in London.
After a brief introduction, in which Mattei presented the main ideas contained in his book – co-authored with Laura Nader – Plunder: When the Rule of Law is Illegal (which I reviewed here), he went on to illustrate his current research, which builds on the radical critique performed in Plunder of the concept of rule of law, as it has played itself out in history.
His new project, for which he has joined forces with best-seller author and ecologist Fritjof Capra, is a positive effort to emerge from the discomfort and the desolation of the bleak scenario painted in Plunder, in order to build a new brand of legal studies, which he himself described as “law & ecology”.
Mattei’s current project deals with the duality between the laws of science and the laws of nature. On the one hand – he observed – lawyers turn to science for certainty, as is clear from the “battle of consultants” that is often engaged in courtrooms around the world to reconstruct some kind of causality between set events (e.g. could the leak from nuclear plant X be responsible for increased death rates in the surrounding area?). On the other hand, however, scientists (who have, in the contemporary world, been confronted with uncertainty in the process of scientific discovery, as exemplified, for instance, by Heisenberg’s indeterminacy principle) seem to do the same with law, i.e. they look at it as something which is immutable and strict, and strive to uncover laws of nature that are as general and certain as those which they believe humans have given themselves.
Building upon this duality, Mattei goes on to ask when exactly did it happen that the laws of humans and those of science became two separate bodies, with such ill-informed opinions of one another. At what point have humans put themselves outside of the laws of nature, and begun looking at the Earth as an object of property, subject to human power, thereby losing their sense of belonging to the rest of nature? This point Mattei identifies in the transition from Spanish naturalist legal thought, as shaped by the school of Salamanca, and firmly anchored in distributive justice, to the notion of commutative justice championed by Northern European conceptions of the law, and particularly by Dutch jurist Grotius.
At that point – he argued – the belief became ingrained in men’s minds that we are better than nature in drafting our laws. Fast forwarding to the present day, the results of this way of thinking have brought about things such as colonialism (where occupation of new territories was justified by the principle of empty land, although that “empty land” was in fact inhabited by people, who were swiftly dismissed as savages and lesser beings), unfair extraction of resources (see the critique of international economic institutions in Plunder) and climate change through uncontrolled exploitation of the Earth’s resources.
The speech closed with the auspice for the adoption of a new conception of the law, more in syntony with the natural world, as opposed to perseverance in the building of a separated, awkward and self-referential legal infrastructure. In this, he hopes for the inclusion of ecology among the criteria for validation of the law, through a breakthrough in legal thought comparable to that brought about by the “law & economics” movement.
Of course, the brevity of this account cannot do justice to the complexiy of this scholar’s thought and research project. I wish, however, to make a few observations which were sparked in my mind by the words of Ugo Mattei.
In particular, what should “law & ecology” mean? The way I see it, Mattei calls for the internalisation – on the part of the law – of those patterns of interaction that make the environment such a robust, adaptive system. In this sense, I believe that the idea of responsiveness to feedback ought to be at the heart of a “law & ecology” movement. Mattei himself repeatedly referred to the Earth as Gaia, likely referring to the Gaia hypothesis, whereby the Earth can be seen as one massive organism that self-regulates itself in order to adjust to turbulence and to preserve itself over time. Ecosystems adapt to stimuli. So should the law (supporting this, I recall Mattei explicitly drawing a parallel between social systems and ecosystems).
In the case of the law, in particular, adaptation to stimuli could mean greater responsiveness to cross-fertilisation from other academic disciplines, as well as from other cultural and legal backgrounds. More generally, it would mean greater attention to all interests touched by legal rules and procedures (not just those that manage to get their voices heard by means of lobbying or lengthy lawyer payrolls), which include those of non-Western populations, as well as the environment.
Once we put it this way, it becomes possible to contextualise Mattei’s critique of the rule of law, so as to carve out some useful guiding principles that can inspire practical change. In fact, I doubt Mattei would go at such distance as to theorise a complete demise of social and legal systems that arguably form the core of Western “culture”. Yet, I believe that starting from the status quo, Mattei’s idea could be implemented to correct existing shortcomings and improve the way things work.
For instance, we always think that Western-style democracies are the best means to govern a society. This conviction, however, may make us deaf to the stimuli for improvement that could be drawn from systems thinking and ecology. In this perspective, in fact, asking how “democratic” democratic societies really are would take on a new, more precise, meaning in terms of how “adaptive” Western democracies really are. How are they able to respond to the feedback available from their citizens? Also, how responsive are democratic states to the needs of their non-voting stakeholders, such as their business partners, their former colonies, the developing world, the environment?
The search for an answer (as well as for an improvement of the shortcomings that would be brought to the fore by it) could – I believe – be a thrilling starting point for a “law & ecology” (or ecologic law?) movement.
Have humans put themselves outside of the laws of nature?
This was perhaps the most striking question raised by Ugo Mattei in the talk “When the Rule of Law is Illegal”, delivered on January 28, 2010 at the Centre for Transnational Legal Studies in London.
After a brief introduction, in which Mattei presented the main ideas in his book (co-authored with Laura Nader) Plunder: When the Rule of Law is Illegal (which I reviewed in the post immediately preceding this one), he went on to illustrate his current research, which builds on the radical critique – performed in Plunder – of the concept of rule of law, as it has played itself out in history.
His new project, for which he has joined forces with best-seller author and ecologist Fritjof Capra, is a positive effort to emerge from the discomfort and the desolation of the bleak scenario painted in Plunder, in order to build a new brand of legal studies, which he himself described as “law & ecology”.
Mattei’s current project deals with the duality between the laws of science and the laws of nature. On the one hand – he observed – lawyers turn to science for certainty, as is clear from the “battle of consultants” that is often engaged in courtrooms around the world to reconstruct some kind of causality between set events (e.g. could the leak from the nuclear plant A be responsible for increased death rates in the surrounding area?). On the other hand, however, scientists (who have, in the contemporary world, been confronted with uncertainty in the process of scientific discovery, as exemplified, for instance, by Heisenberg’s indeterminacy principle) seem to do the same with law, i.e. they look at it as something which is immutable and strict, and strive to uncover laws of nature that are as general and certain as those which they believe humans have given themselves.
Building upon this duality, Mattei goes on to ask when exactly did it happen that the laws of humans and those of science became two separate bodies, with such ill-informed opinions of one another. At what point have humans put themselves outside of the laws of nature, and begun looking at the Earth as an object of property, subject to human power, thereby losing their sense of belonging to the rest of nature? This point Mattei identifies in the transition from Spanish naturalist legal thought, as shaped by the school of Salamanca, and firmly anchored in distributive justice, to the notion of commutative justice championed by Northern European conceptions of the law, and particularly by Dutch jurist Grotius.
At that point – he argued – the belief became ingrained in men’s minds that we are better than nature in drafting our laws. Fast forwarding to the present day, the results of this way of thinking have brought about things such as colonialism (where occupation of new territories was justified by the principle of empty land, although that “empty land” was in fact inhabited by people, who were swiftly dismissed as savages and lesser beings), unfair extraction of resources (see the critique of international economic institutions in Plunder) and climate change through uncontrolled exploitation of the Earth’s resources.
The speech closed with the auspice for the adoption of a new conception of the law, more in syntony with the natural world, as opposed to perseverance in the building of a separated, awkward and self-referential legal infrastructure. In this, he hopes for the inclusion of ecology among the criteria for validation of the law, through a breakthrough in legal thought comparable to that brought about by the “law & economics” movement.
Of course, the brevity of this account cannot do justice to the complexiy of this scholar’s thought and research project. I wish, however, to make a few observations which were sparked in my mind by the words of Ugo Mattei.
In particular, what should “law & ecology” mean? The way I see it, Mattei calls for the internalisation – on the part of the law – of those patterns of interaction that make the environment such a robust, adaptive system. In this sense, I believe that the idea of responsiveness to feedback ought to be at the heart of a “law & ecology” movement. Mattei himself repeatedly referred to the Earth as Gaia, likely referring to the Gaia hypothesis, whereby the Earth can be seen as one massive organism that self-regulates itself in order to adjust to turbulence and to preserve itself over time. Ecosystems adapt to stimuli. So should the law (supporting this, I recall Mattei explicitly drawing a parallel between social systems and ecosystems).
In the case of the law, in particular, adaptation to stimuli could mean greater responsiveness to cross-fertilisation from other academic disciplines, as well as from other cultural and legal backgrounds. More generally, it would mean greater attention to all interests touched by legal rules and procedures (not just those that manage to get their voices heard by means of lobbying or lengthy lawyer payrolls), which include those of non-Western populations, as well as the environment.
Once we put it this way, it becomes possible to contextualise Mattei’s critique of the rule of law, so as to carve out some useful guiding principles that can inspire practical change. In fact, I doubt Mattei would go at such distance as to theorise a complete demise of social and legal systems that arguably form the core of Western “culture”. Yet, I believe that starting from the status quo, Mattei’s idea could be implemented to correct existing shortcomings and improve the way things work.
For instance, we always think that Western-style democracies are the best means to govern a society. This conviction, however, may make us deaf to the stimuli for improvement that could be drawn from systems thinking and ecology. In this perspective, in fact, asking how “democratic” democratic societies really are would take on a new, more precise, meaning in terms of how “adaptive” Western democracies really are. How are they able to respond to the feedback available from their citizens? Also, how responsive are democratic states to the needs of their non-voting stakeholders, such as their business partners, their former colonies, the developing world, the environment?
The search for an answer (as well as for an improvement of the shortcomings that would be brought to the fore by it) could – I believe – be a thrilling starting point for a “law & ecology” (or ecologic law?) movement.