2016 Virtual Dialogue on Harmony with Nature - Theme Earth

By Cristiane Derani - Earth-centered

1 What would the practice of your selected discipline look like from an Earth Jurisprudence perspective? How is that different from the way that your discipline is generally practiced now? And, what are the benefits of practicing the selected discipline from an Earth Jurisprudence perspective?

Law as a social achievement has “naturally” an anthropocentric approach. An earth- centered Law demands change in Law thinkers, in law making and in the society commitment. In the end the law aim is a better society, happy and collaborative peoples. In other words, a great transformation must happen. But there are many doors through which changes can start. First an epistemic change may be done. behaviour as well as production and consumption must find a limit. It can be seen as an ethical challenge, but ethics and law are always hand in hand.

As an example, the so called polluter-payer principle shall not be used in an inefficient way. It means, when paying is not sufficient to balance the use of nature with its capacity of resilience, the principle although legal is against the law in terms of Earth Jurisprudence. In order to offer another illustration, let’s take the principle of sustainable development. From an Earth- Jurisprudence perspective the content of this expression must seriously incorporate the ecosystems conservation and recuperation. Hence sustainable development becomes a legal principle it law should leads to more stringent rule of law regarding fossil fuel use or traceability of products. Prohibition and banning such ancient but still existent environment destructive practices must be taken seriously in a hence democratic and incisive rule of law.

From an Earth Jurisprudence perspective, would be not a branch of Law but a guide for the development of law in general when it meets the use of natural resources. Thus, economic law, consumer law, urban law, human-rights law, has to be “greening” in a way as to achieve a lost harmony between nature and human society. Better say instead of greening, environmental law has the aim of bringing society comprehension to the reality of its existence where nature is its intrinsic part. The Greek aphorism Ubi societas Ib jus must give place to another also true. Where there is a balanced Societas there is a balanced nature. There is no development harming nature, extinguishing biodiversity, empoisoning earth, water, air and climate.

2. What promising approaches to you recommend for achieving implementation of an Earth- Jurisprudence worldview for your selected discipline? (note: depending on the discipline, approaches could also be theoretical, although practical approaches should be prioritized).

As a social discipline Law is attached to the common and erroneous idea of a split between nature and society. This about five-hundred-year idea must be converted into a holistic conception. Nature and society are together. Nature is the base over which society develops its structure and human beings build up their activities.

Every social relationship is a relationship within nature. There is no society without nature. And the character of a society is given by the surrounded nature and environmental conditions where society is settled.

1 In summary, practical legal activities have to be open to receive clear environmental information and from that collected data pronounce decisions, legal statements or findings. Environmental rule of law is usually composed by broad statements. Expressions like sustainable development, sane environment, friendly to the environment and so one must be interpreted.

A clear concept of this expressions need a tailor-made content. In order to have a Earth-centered Law we are using scientific data collected in the field. Revising concretely the environmental conditions in order to evaluate law compliance. In other words, the law understanding needs must be filled in with concrete elements not subjective nor imaginative ones. It means that in practice, lawyers, politicians in governance action, stake holders generally speaking have the task to collect the compounds of the considered environment in the light of the interactions of natural resources and these with respective human activities.

Going further, establishing this picture it is important to take information from psychological, behaviour science, ecology, ecological economy and other related sciences in order to provide data for modelling of the possible effects of certain activities. The law compliance and enforcement needs a realistic approach so as ensure its aim in the reality an Earth-Jurisprudence the commitment with the environment. Therefore, it is possible to grant an achievement in an earth -jurisprudence perspective.

3. What key problems or obstacles do you see as impeding the implementation of an Earth- centered worldview in your selected discipline?

One of the major problems is the lack of a real compromise from governments in relation to environment protection. Focusing on the next elections and also on how to get the political dispute financed, governments are much more interested on the corporation interests instead to look at nature as well as at human necessities. Law-making process municipal and international as well still adopts an auto-destructive position ignoring the urgency for ruling a behaviour change in the society, although all evidences such as climate change, water scarcity, food empoisoning, air pollution, and so on.

Government makes law and organise its enforcement (executive, legislative and judiciary power). As long as they are bound to economic auto destructive power it is quite difficult to have a fast change. Changes have been made motivated by company’s urgencies and financial interests not by environmental requirements. Therefore, even provided scientific evidence that earth temperature is raising, fossil fuels based economy continue to guide municipal and international politics and law. We are used to this kind of contradiction and the disconnection between discourse and political practice, but it is in fact an obstacle that must be overridden. Economics and environment must find a balance if they want to survive.

That leads to another problem. Environment has no voice, no money and no vote. The only way to defend it is to convince deeply society about his unavoidable dependence of nature.

4. What are the top recommendations for priority, near-term action to move your selected discipline toward an Earth Jurisprudence approach? What are the specific, longer-term priorities for actions? (give 3 to 10 priorities for action)

Near-term action to move Earth Centered Law toward an Earth Jurisprudence approach - Hermeneutical approach of key principles of environmental law. Precautionary, prevention, polluter-pay, cooperation as well as sustainable development principles have to be interpreted in an earth-centered bases. The back-ground of the reasoning must be the earth and the functioning of the nature elements. Nowadays, it usually takes a specific social activity and try to

2 accommodate it in the environment with more or less success. The resilience capacity of ecosystems and planetary boundaries must operate as concrete signs for the content of these legal principles.

- Review the concept of customary law and the principle of analogy. There is a rich world beyond western culture. It is important consider ancient culture seriously in order to search for a better understanding about the nature. The idea of “pachamama” and the rules that have been orienting ancient cultures for centuries in their relationship with the environment are important clues as the judge of International Court of Justice, Weeramantry, showed us in his separate opinion in the case Gabicikovo -Nagimaros. Ancient customary law can be a source for earth-centered Law.

- Behaviour and modelling theories are helpful for more realistic law enforcement and compliance. It is important to have as background a comprehensive scenario of the state of environment and a more realistic approach using tools as modelling in order to provide a realistic idea of the consequences of interference in the nature.

- Political and economic discussions have to focus on environmental necessities and boundaries first and just then adjust financing and governance to it, not the other way round as it is still happens. Today in completely misconception way the environment is rationalized in order to fit the actual structure of business.

Long-term priorities for action: - Work up an ethical perception of the indissociably links between nature and society. Society is what it makes from nature.

- Readdress economic production, consumerism and endless created necessities. Private Economics are sources of huge social costs. Fred Hirsh called the “social cost of private enterprise”. It is worthwhile his idea of positional good. He argues that economic growth is strongly motivated by the search of a better position in a competitive world. This idea of getting more in order to be happier is the illusion that blurs the mind and destroys the environment.

- Get rid of short-termism in politics and readdress its aim to human “bien vivir”. Governments must face they work for society not for companies. Neo liberalism has become a common sense and it is barely twenty years in politics. Its premises are weak and provokes deep social disarray. Nevertheless, their supporters concentrate the financial wealth of the entire world. Strategies to dismantle the strong alliance between politics and the realm of finance are vital.

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