Reconciling degrowth and law isn’t always easy, given the anarchist underpinnings and anti-statist leanings of some in the degrowth community. One vision of a degrowth world is of decentralized, autonomous, convivial communities of people in tune with their supporting ecosystems, consuming no more than they need, sharing as much as possible and treating each other with compassion, fairness and mutual respect. No central state power, no police, no borders, no masters and servants, no conspicuous consumption, no oppression. This, however, doesn’t necessarily require a world without law, just a world with law that is much different from the forms of law that prevail in today’s rapacious and unjust world.
Reconciling degrowth and law isn’t always easy, given the anarchist underpinnings and anti-statist leanings of some in the degrowth community. One vision of a degrowth world is of decentralized, autonomous, convivial communities of people in tune with their supporting ecosystems, consuming no more than they need, sharing as much as possible and treating each other with compassion, fairness and mutual respect. No central state power, no police, no borders, no masters and servants, no conspicuous consumption, no oppression. This, however, doesn’t necessarily require a world without law, just a world with law that is much different from the forms of law that prevail in today’s rapacious and unjust world. Humanity’s overarching challenge is to learn how to stop individually and collectively doing harmful things we are used to and conditioned to doing. Meeting that challenge, through degrowth or otherwise, requires some form of law. For reasons that follow, I propose that that the emerging field of ecological law is well suited to help guide a transformation to degrowth societies.
Contemporary law, including environmental law, is anathema to degrowth. Dominant forms of law today are tied to hierarchical structures centered around states and private property, and contemporary law is a fierce handmaiden to many aspects of the prevailing neoliberal order, including capitalism, that degrowth challenges. Environmental law is part of this contemporary law. In calling for ecological law that transforms contemporary law, the Ecological Law and Governance Association’s (ELGA) Oslo Manifesto (2016) notes that the roots of environmental law in anthropocentrism, human-nature dualism and individualism has rendered it fragmented, reductionist, blind to ecological interdependencies and weak in comparison to law that protects private interests and state sovereignty.
But, from the perspective of legal pluralism—the idea that law is expansive and encompasses communal ways of maintaining social order and cohesiveness without relying on coercive and centralized state power—forms of law that differ from the prevalent notion would enable and enhance a degrowth trajectory. Place-based, communitarian forms of law that resonate with principles of equality, justice and sustainable production and consumption in degrowth have existed throughout history, especially in Indigenous legal traditions.
The legal contours of degrowth are unlike conventional law in the same way that the economic and moral contours of degrowth defy the prevailing economics and ethics of our times. I have proposed ecological law as the legal complement of degrowth, and I have identified eleven features of ecological law that show why. The first is that ecological law treats humans as part of the Earth’s life systems, not separate from them. Thus, concepts relevant to ecological law, like ecological integrity, must include humans within flourishing life systems. Second, ecological limits, such as planetary boundaries, must have primacy over economic, political and other considerations. The third follows from this ecological primacy: ecological law permeates the entire legal regime in a systemic way, and is not a specialty like environmental law. Fourth, in light of the current ecological crisis, an immediate focus of ecological law must be on reducing the throughput of material and energy in the economy. Fifth, ecological law must ensure that biomass and extracted materials are obtained and used in the economy according to real needs, with minimal consideration of utilitarian desires reflected in market prices. Sixth, ecological law must be global for problems like climate change, but applied using principles of proportionality (sufficient but not excessive regulation) and subsidiarity (application of law at the lowest political tier at which the law’s objective can be achieved). Seventh, ecological law must ensure fair sharing of resources among present and future generations of humans and other life. Eighth, the ecological law must be binding and supranational, with supremacy over sub-global legal regimes—in particular, sovereign states—as necessary. This implies some significant reformation of institutions like the United Nations and the World Trade Organization in the international order—perhaps the topic of a future blogpost. Ninth, a greatly expanded program of research and monitoring tied to the understanding and continual adjustment of ecological boundaries and means for respecting them is needed to support ecological law from the global to the local level. Tenth, ecological law requires precaution about crossing planetary boundaries, with both margins of safety to ensure that the boundaries are respected and complementary measures, such as ecological and eco-cultural regeneration and restoration, to allow the Earth’s life systems to flourish. The restoration that is needed is as much about restoring a mutually enhancing human-Earth relationship as it is in returning pristine protected areas and wilderness to human-free conditions. Finally, ecological law must be adaptive, both because ecosystems are constantly adapting and because of the urgent need to get started on a comprehensive effort to constrain the economy within ecological limits and make adjustments as uncertainties are reduced.
From a degrowth perspective, these eleven features should be considered flexible and adaptable to place-based governance systems that do not necessarily rely on centralized states or other authorities. Indeed, a twelfth feature may be needed that captures more clearly the openness of ecological law to legal pluralism that encompasses many different possibilities for place-based legal and governance systems. Carla Sbert nicely compressed these features into three in her proposal for a “lens of ecological law”: ecocentrism, which involves recognizing and respecting the value of all beings, human and non-human, and the interconnectedness among them; ecological primacy, which is about ensuring that social and economic behavior and systems are ecologically bound, for example by planetary boundaries; and ecological justice, which refers to ensuring equitable access to the Earth’s life support capacity for present and future generations of humans and other beings, and avoiding an inequitable allocation of environmental harms.
The communal, emergent, place-based systems of law and governance that Elinor Ostrom, Arun Agrawal and others have identified in communities that have sustainably drawn from their supporting ecosystems for long periods of time are models of how features of ecological law might support degrowth societies. A ripe area for research is whether and how such sustainable law and governance models could or should be scaled upspatially, for example to or beyond the nation state level, in light of challenges of scaling up the community relations, direct democracy and means of communication that are key to those models. Another way to bring ecological law closer to the here and now, and to make it more concrete and practicable, is to conduct ecological law case studies that apply ecological law theory to diverse real-world situations or activities. By ground-testing ecological law theory, ecological law case studies contribute to ongoing development and refinement of that theory and reveal pathways for overcoming real-world challenges in implementation and public acceptance of ecological law.
One source of inspiration and hope that such pathways might materialize is the Whanganui River case in New Zealand, where the ultimate settlement resolved a long history of disagreements over implementation of the 1840 Treaty of Waitangi. In the Whanganui River case, Maori principles are at the heart of the settlement, which anchors future use of the river and its life community in “a fundamental recognition of the interconnectedness of the Whanganui River, its peoples and its resources.” Thus, the settlement provides a platform for bringing Indigenous and Western understandings together in a common legal space, a new place-based hybrid that sheds at least some part of the Whanganui river’s injurious colonial past and newly empowers ancient Indigenous worldviews and legal traditions. The Whanganui case is being recognized more and more as model for other places—one that has potential to lead toward a mutually enhancing human-Earth relationship, and thus ecological law that facilitates a degrowth transformation.
*This piece was originally published on 9 May 2021.