Peter D. Burdon

Wild Law: The Philosophy of Earth Jurisprudence

Wild law or Earth Jurisprudence is an emerging theory of law and governance that seeks to evolve law in a fashion that recognises our relationship to the broader Earth community. In this article, the author introduces and articulates some fundamental concepts being developed by theorists in this area. The author also discusses the recent constitutional amendment in Ecuador that granted nature the right to exist, persist and flourish.

The project of Earth Democracy

Foreword Peter Brown Introduction Laura Westra Part 1: The Role and History of Integrity (From Grave Problems to Possible Reversals) Introduction Laura Westra 1. Why the Global Ecological Integrity Group? The Rise, Decline and Rediscovery of a Radical Concept Jack Manno 2. Environmental Norms in the Courtroom: The Case of Ecological Integrity in Canadas National Parks Shaun Fluker 3. The Future of the Common Heritage of Mankind: Intersections with the Public Trust Doctrine Prue Taylor 4. The Exploitation of Genetic Resources in Areas Beyond National Jurisdiction Tullio Scovazzi 5. Ecological Integrity in European Law? Agnes Michelot Part 2: Ecological Integrity and Basic Rights: The Interface Introduction Agnes Michelot 6. Lessons Learned From the Climate Change Disinformation Campaign About Responsible Scientific Skepticism Don Brown 7. Granting Development consent by specific legislative act: Choice to circumvent public participation and judicial control? The European Perspective Vicky Karageorgou 8. The Principles of Integration and Interrelationships in International Law related to Sustainable Development: Sobering Lessons from EU Law Owen McIntyre 9. Thinking about the Future of Global Water Governance Joe Dellapenna 10. How the UN Agencies contribute to the needs of the world. Focus on Gender Yuliya Lyamzina Part 3: From Disintegrity to Ethical Concern: Cases and Issues Introduction Prue Taylor 11. Key actors of the red sludge disaster in Hungary Janos Toth 12. Dollars and Dreams: Legal Aspirations and Report Cards in the Murray Darling Basin of Australia Janice Gray Part 4: Integrity and the Economy Introduction Prue Taylor 13. How Regulation of Finance Got it Wrong and How it Still Does Giovanni Ferri 14. Enhancing Global Regulation: Exploring Alternative Financial Machinery Michelle Gallant 15. Moving Forward with Planetary Boundaries and Degrowth Geoff Garver 16. The virtuous circle of Degrowth and Ecological Debt: a new paradigm for Public International Law? Noemie Candiago 17. Tobacco Wars, Analogies and Standards of Review in International Investment Arbitration Valentina Vadi Part 5: Moving Forward: New Approaches & Concluding Thoughts Introduction Beyond Collapse: Claiming the Holistic Integrity of Planet Earth J. Ronald Engel 18. The Project of Earth Democracy Peter Burdon 19. Dreaming the Universe: Contending Stories of Our Place in the Cosmos Joan Gibb Engel 20. Occupy Wall Street: The History and Potential of a Movement to Make a New World Possible Sheila Collins 21. Confronting Ecological and Economic Collapse: Ecological Integrity for Law, Policy and Human Rights: The Legacy of Rio+20 Saving the Commons from the Market Klaus Bosselmann 22. Confronting Collapse: Human Cognition and the Challenge for Economics William Rees Index

Wild Democracy: A Biodiversity of Resistance and Renewal

Might the theory and practice of liberal representative democracy need to be rethought in and for the ‘Anthropocene’? What resources are available when trying to orientate oneself in radical political space today? In this paper, the authors draw on varieties of anarchism and Marxism to develop a new, ecocentric political sensibility and practice, which they call ‘wild democracy’. Calling for a ‘biodiversity of resistance and renewal’, this signifies an eco-egalitarian politics that privileges grassroots participation over parliamentary representation, with the aim of transcending capitalism and initiating a degrowth process of planned economic contraction. Focusing attention beyond the ballot box, this analysis attempts to rethink the meaning of political participation in an age of ecological crisis and deepen the understanding of what it means to be an ecological citizen today.

Decolonising Indigenous Water ‘Rights’ in Australia: Flow, Difference, and the Limits of Law

This article addresses Indigenous Australian claims to water resources and how they inform and relate to current Australian law and contemporary legal thinking about future possibilities. It adopts a multidisciplinary approach, drawing from historical records, previous ethnographic investigation with Indigenous Australians, current legal scholarship, and social anthropological theory. In doing so, it analyses Indigenous dependencies on water, the history of settler colonial orientations to water bodies, the evolution of settler colonial–Indigenous relations to natural resources, and the development of the Australian legal systems regulation of water. This provides foundations for a discussion of the limitations of settler colonial notions of property and the failure of settler colonial law to understand and incorporate the dynamism of Indigenous relationships to water, particularly the meaning and productive capacity of water flows within Indigenous cosmologies and sociocultural and ecological systems. Calling for a decolonial turn in legal approaches to Indigenous access and water resource determination, the authors explore the ways in which Australian law may need to ‘unthink’ settler colonial notions of resource ownership as a prerequisite for reformulating future water policy and planning. This reformulation relies on a more extensive legal philosophical engagement with the concept of ‘flow’, a concept that already exists in both water law and planning, but which has not been adequately theorised and enacted. A more comprehensive legal understanding of flow in the context of Indigenous understandings of, and claims to, water provides more sustainable and equitable legal and analytical foundations for managing future water resources issues. The article creates the space for a more culturally relevant notion of ‘Indigenous water rights’ and for new ways of honouring the interrelationship between water flows, meaning-making practices, and cultural continuity.

Hannah Arendt: on judgment and responsibility

This article considers the relevance of Hannah Arendt’s writing on responsibility and judgment for legal academics. It begins by providing a summary of Arendt’s report on the Eichmann trial, focusing in particular on the gradual shift in her thinking from theorising evil as radical to something that is banal. Following this, I connect Arendt’s thinking on judgment with her writing on plurality and what it means to keep company with oneself. I contend that Arendt’s most important contribution to moral thinking was the disenchantment of evil from its religious legacy. Finally, I consider the continued relevance of Arendt’s warning about the risks mass technological society poses for the capacity of human beings to think and make reflective judgments. These uniquely human characteristics need to be protected, if we are to guard against the rise of inverted totalitarianism and the reduction of human beings to homo oeconomicus.

The Jurisprudence of Thomas Berry

On June 1, 2009 Fr Thomas Berry passed away at his home in Greensboro N.C. In his final book before passing, Berry challenged human society to a carry out a transition from a period of human devastation of the Earth to a period when humans would be present to the planet in a mutually beneficial manner. This ‘Great Work’ encompassed religion, education, science and law. In this paper I will address Berry’s argument that our current legal system supports the destruction of the environment and outline two ideas he put forward for evolving law. The first idea recognizes that human law operates within and should be bound by the overarching laws of the natural world. From this perspective, the laws of nature are primary and human law would receive its legal quality and authority from its conformity with this law. The second proposal was to recognize that the earth consists of subjects, not objects and that all subjects are capable of holding rights. I will consider this argument in the context of two recent enactments of ‘rights for nature’ legislation in municipalities in the United States and in the constitution of Ecuador.

Silencing of activism in Australian law

Environmental destruction and climate change are driving new waves of environmental activism. In response, governments in several Australian states have enacted legislation designed to penalise and silence political protest. This article analyses Tasmania’s anti-protest laws and considers how the United Nations and scholars have reacted to them. We argue that protest suppression laws such as these reflect a neoliberal rationality which conceptualises society in market terms. This mode of thinking perceives protest as market interference rather than civic participation. Accordingly, anti-protest laws seek to secure the rights and interests of corporations to unimpeded market access.

Environmental human rights: a constructive critique

This Chapter presents a constructive critique of environmental human rights. The analysis is ‘constructive’ in the sense that it seeks to reveal the underlying assumptions and preconditions upon which a discussion of environmental human rights rests. Three key critiques are advanced. The first concerns the way environmental human rights embody an anthropocentric logic that abstracts human beings from the environment and from each other. I suggest that this abstraction gets produced and re-inscribed in the political and legal discourse of human rights and in its application to particular circumstances. Second, I describe how contemporary human rights discourse represents a ‘last utopia’ in the political juncture which right wing Hegelian Francis Fukuyama termed ‘the end of history’. Drawing on Samuel Moyn’s recent revisionist history of human rights, I consider how human rights have been used as a tool for repressing ‘radical politics’ and how the language of human rights acts as a ‘colonizing space’ that subsumes other discourses or modes of action. Finally, I draw attention to critical discourses that get displaced by environmental human rights – namely anti-capitalism and other alternatives to the modern market economy that are often presented under the heading of the ‘new economy’. I argue that the egoism of environmental human rights limits their ability to combat market capitalism and that environmental human rights risk being subsumed within a capitalist economic framework.