Earth jurisprudence: private property and earth community.

Abstract

The central argument of this thesis is that the institution of private property reflects an anthropocentric worldview and is contributing to the current environmental crisis. Drawing on the description of law as a mirror of society, it considers how our idea of law and the institution of private property can adapt to reflect the recent scientific description of human beings as interconnected and mutually dependant on nature. It advocates a paradigm shift in law from anthropocentrism to the concept of Earth community. The thesis first provides an example laws anthropocentrism by exploring the legalphilosophical concept of private property. Private property is advanced over other legal concepts, because it plays a key role in governing human interactions with the environment and because it contains some of law’s main messages about nature and our place within it. The thesis analyses three main influences on the development of private property from the humanism of antiquity, the scientific revolution and the influence of liberal political philosophy. It concludes that the dominant rights-based theory of private property is anthropocentric and facilitates environmental harm. The second component of the thesis explores contemporary scientific evidence supporting the ecocentric concept of Earth community. This concept argues that human beings are deeply connected and dependent on nature. It also describes the Earth as a community of subjects and not a collection of objects. Assuming that the social sphere is an important source for law, this thesis considers how a paradigm shift from anthropocentrism to ecocentrism can influence the development of legal concepts. To catalyse this shift, it considers the ‘new story’ proposed by cultural historian and theologian Thomas Berry. This story describes contemporary scientific insights such as interconnectedness in a narrative form Third, the thesis uses the alternative paradigm of Earth community to articulate an emerging legal philosophy called Earth Jurisprudence. It describes Earth Jurisprudence as a theory of natural law and advocates for the recognition of two kinds of law, organised in a hierarchical relationship. At the apex is the Great Law, which represents the principle of Earth community. Beneath the Great Law is Human Law, which represents rules articulated by human authorities, which are consistent with the Great Law and enacted for the common good of the comprehensive Earth Community. In regard to the interrelationship between these two legal categories, two points are crucial. Human Law derives its legal quality from the Great Law and any law in contravention of this standard is considered a corruption of law and not morally binding on a population. Finally, the thesis constructs an alternative concept of private property based on the philosophy of Earth Jurisprudence. It describes private property as a relationship between members of the Earth community, through tangible or intangible items. To be consistent with the philosophy of Earth Jurisprudence, the concept of private property must recognise human social relationships, include nonreciprocal duties and obligations; and respond to the ‘thing’ which is the subject matter of a property relationship. A theory of private property that overlooks any of these considerations is defective and deserves to be labelled such.