Date01 March 2021
AuthorTully, James

We know that law is a major enabler of the human activities that cause climate change, biodiversity destruction, and related ecosocial crises. We also turn to the law to regulate, mitigate, and attempt to transform these unsustainable human activities and systems. Yet, these regulatory regimes are often "recaptured" or "overridden" in turn by the very anthropogenic processes causing the crises. The resulting vicious cycles constitute the global trilemma of the twenty-first century that is rapidly rendering the living earth uninhabitable for humans, in radically unequal ways, and for thousands of other species. Integral, non-violent, sustainable democratic constitutionalism is one modest, experimental, trial-and-error response to this trilemma.

Nous savons que le droit est l'un des catalyseurs d'activites humaines contribuant aux changements climatiques, a la destruction de la biodiversite, et aux crises ecosociales connexes. Nous nous tournons egalement vers le droit pour attenuer et tenter de transformer ces activites humaines non durables. Pourtant, troisiemement, ces regimes de reglementation sont souvent << recaptures >>, voire << supplantes >>, a leur tour par les processus anthropiques a l'origine de ces crises. Le cercle vicieux qui en resulte constitue le trilemme mondial du XXIe siecle qui transforme la Terre, de maniere inegale, en milieu inhabitable pour les humains et pour les autres especes. Un constitutionnalisme democratique durable, integral, non violent, modeste, experimental, a tatonnement, est l'une des reponses a ce trilemme.

Introduction: The Crisis of Sustainability and Responses A. The Sustainability Crisis B. Three Phases of Ecosocial Systems C Misperceiving the Crisis I. The Vicious Social Systems that Cause the Crisis A. Four Processes of Disembedding and Re-embedding B. The Picture of Law in These Vicious Systems II. Learning from Gaia A. Convergence of Western and Indigenous Life Sciences B. Gaia Hypothesis, Symbiosis, and Symbiogenesis C. Three Phases of Life Systems and Ecological Succession D. Transforming Ecosocial Systems III. The Ecology of Law A. Transformative Ways of Ecosocial-Legal Succession B. Four Seeds of Legal Transformation: Law and Society, Ecology, Indigenous Law, and Ethics C. Six Common Law Tools of Transformation Conclusion: Common Law Contestation, Transformation, Reconciliation Introduction: The Crisis of Sustainability and Response

  1. The Sustainability Crisis

    As we all know, we humans are entangled in a cluster of interconnected crises of social and ecological sustainability and well-being.

    Over the last four hundred years, the West has developed an assemblage of social systems of production, consumption, law, government, military, and education that is socially and ecologically unsustainable and self-destructive. It overreaches and undermines the social and ecological conditions that sustain life on earth for Homo sapiens and many other species and ecosystems. It is now the dominant global social system.

    It is an assemblage of "vicious" social systems in the technical sense that the regular feedback loops within and between these social systems, and the informal social systems and ecosystems on which they depend, reproduce and intensify the destructive effects of the systems on the ecological and social spheres.

    We have known that this anti-social system is unsustainable socially and ecologically since the first meetings of scientists at the United Nations on the sustainability crisis in the 1950s and 1960s. The limits to growth were pointed out in the 1970s. The global norm of sustainability was introduced and expanded to sustainability and social well-being in the 1980s and 1990s. The Intergovernmental Panel on Climate Change and thousands of scientific studies track the growth of the crisis and suggest responses. National and international meetings and agreements take place every year. There also have been countless legal responses to climate change and its cascading effects. (1)

    Yet the crisis continues despite best efforts so far to address it. We are already into a sixth mass extinction of biological diversity--and biodiversity is the necessary condition of life on earth. If the cascading destructive ecological and social effects of business-as-usual development continue apace, much of the earth may be less habitable, or uninhabitable, for Homo sapiens and thousands of other species by the turn of the century. Moreover, the wealthiest people and countries are the major contributors to the crisis, while the poor and poorest countries are the major immediate victims. (2)

    Thus, the great question is: What have we learned over the last sixty years and how can we address the crisis most effectively today?

  2. Three Phases of Ecosocial Systems

    The first thing we have learned from the study of complex social and ecological systems is that they often become vicious in the way ours has. They develop in ways that use up the conditions that sustain them, degrading or destroying the interdependent life forms on which they depend, and thus destroying themselves. There are many examples in the history of life systems, both human and non-human.

    Fortunately, there are also many examples of resilient members of vicious social and ecological systems changing their behaviour and transforming their vicious systems into virtuous and sustainable ones before collapse, and also examples of recovering from collapse and regenerating virtuous, self-sustaining systems. (3)

    Thus, there are three possible phases of life systems. The first is the more or less virtuous and self-sustaining, or conciliatory phase. The second is the more or less vicious and unsustainable, or "crisis" phase. The third phase is the way in which unsustainable systems in a crisis phase learn how to change and regenerate the virtuous conditions of sustainability before they collapse. This is the third phase of ecosocial succession and transformation into a regenerated self-sustaining, virtuous system. The way a forest ecosystem recovers after clear-cutting is an example. (4)

    From this perspective, we are in the second, unsustainable crisis phase. Thus, the third phase of a complex system is of immense importance for us--that is, of transformation of our vicious systems into virtuous systems. We can study examples of regeneration and think of how to apply them to our own situation.

    The vicious social systems that are the cause of the crises of sustainability are not automatons, as the doomsayers claim. (5) They are very complex local and global social systems to which we are subject and on which most of us depend for our livelihood. Our daily productive and consumptive behaviour reproduces them. However, we are not so enslaved to them that we cannot think or act otherwise. We are free to reflect on them and to ask how to live and act differently to regenerate and transform our secondphase, vicious social systems into virtuous, self-sustaining systems. Millions of people are doing so today. I call these responses "Gaia citizenship." (6)

    In this lecture, I survey the relevant features of regenerative and transformative sustainability practices and explain how they apply to the practice of law. I call this integral, non-violent, sustainable democratic constitutionalism, or, simply, Gaia law.

  3. Misperceiving the Crisis

    However, before we turn to regenerative responses, we need to understand how our vicious social systems cause both the crisis phase we are in and the misperception we have of it as subjects within it. For Gaia citizens, the reason we have difficulty responding effectively to the sustainability crisis is that we misperceive the crisis.

    The reason we misperceive the crisis is that we view it from within the ways of thinking and acting that sustain the vicious social systems that are causing it. It is our self-formation as participants within these social systems that discloses the world around us and our relationship to the environment in a way that overlooks or distorts how they degrade the life-sustaining conditions. Thus, even when we can no longer ignore or discount the damage we are doing, we respond in the standard problem-solving ways and means of the vicious systems, and thereby reproduce their positive feedback loops, rather than changing them. This is the "regulatory trilemma" I mention at the beginning.

    Hence, the problem is one not only of misperception, but also of being subjects of the social systems that generate the misperception. Barry Commoner first suggested this in 1971:

    To survive on the earth, human beings require the stable, continuing existence of a suitable environment. Yet the evidence is overwhelming that the way in which we now live on the earth is driving its thin, life-supporting skin, and ourselves with it, to destruction. To understand this calamity, we need to begin with a close look at the nature of the environment itself. Most of us find this a difficult thing to do, for there is a kind of ambiguity in our relation to the environment. Biologically, human beings participate in the environmental system as subsidiary parts of the whole. Yet, human society is designed to exploit the environment as a whole, to produce wealth. The paradoxical role we play in the natural environment--at once participant and exploiter--distorts our perception of it.... [We] have become enticed into a nearly fatal illusion: that ... we have at last escaped from dependence on the natural environment. (7) In the first section, I discuss the vicious social systems that cause the crisis and generate this fatal illusion of independence from the ecosphere on which all life depends. In the second section, I examine the three phases of the life systems that sustain life on earth, yet that we misperceive from within our current social systems. In the third and longest section, I apply Gaia's teachings to the roles that the practice of law can play in transforming the unsustainable...

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