Book Review: Wild Law

If you believe that the world is beset by a series of environmental problems that may well be fatal to civilisation, as it has commonly been understood, you may well be puzzled as to why the institutional responses to this crisis have, so far, been so ineffective. Some of the answers to that conundrum are provided in this interesting book.

Cormac Cullinan once practised law in the field of shipping and international commerce. At the same time, he is a former anti-apartheid activist. He now works as a partner in a specialist environmental law firm in Cape Town4 and also runs an environmental law and policy consultancy.5

Cullinan points out two things: one obvious and the other not so obvious but, nonetheless, very important to acquiring the desired understanding.

It is obvious that the legal systems of the world are based upon the premise that humans are the centre of the universe and that the natural world was invented for human beings to exploit, dominate, and, if necessary, destroy. The concept of rights means rights for humans and no other element of the world, living or non-living.

It was not so obvious, to this reviewer, at least, that law has a very conservative role, not only in the way that societies operate, but also in the way in which we think about the legitimacy of ideas. Cullinan points out that the importance of the laws (and the institutions for which they provide) can be more easily perceived when nations are being formed. He gives as an example the importance of the 1776 American Declaration of Independence which, a few years later when the war was won, provided the key ideas around which the United States of America was built. The ideas in that 230 year old document continue to shape the way Americans think about, and go about, the governing of their country.

The law can change at the margins whether by court decision or decision of the legislative and executive branches of government. However, there are strict limits to the possibility of change such that ideas for legal change lying outside those limits are, for the most part, unthinkable.

Cullinan uses the analogy of a painting within a frame to explain this phenomenon. Much debate can go on about the merits of the brush work and composition of the painting. However, no discussion occurs of anything outside the frame. Despite this, we are all unconscious even that the frame is there and that it is restricting discussion in any way.

 There have been many well argued cases in the United States arguing that the law should provide rights to animals but they have all been unsuccessful. This is because rights for animals, applying the analogy, fall outside the frame of the painting and are, therefore, unthinkable. And no one need even question why that is the case because the law provides that limit to our thinking.

Cullinan documents aspects of the way in which “our legal and political establishments perpetuate, protect and legitimise the continued degradation of the Earth”. He discusses the idea of the corporation, an artificial entity, invented in the last four hundred years which separates actors (directors, managers, workers and shareholders) from the responsibility for what they do. At the same time, the law legitimises and mandates whatever destructive conduct is engaged in because, as a matter of corporations law, the duty on the directors is to maximise the returns to the shareholders. He gives as an example a successful lawsuit against Henry Ford for paying too much money to his workers.

The alternate source of a guiding philosophy is to look to nature, itself, and our true place in it. This is not as a biblically ordained lord and master but, rather, as a respectful participant along with other species. Cullinan points out that we are not, as the presently prevailing world view would have it, independent of the Earth’s natural systems, but very much dependent on the continued health of those systems for our own long term survival. This source of inspiration Cullinan describes as “Earth jurisprudence”.

The point that Cullinan makes strongly in the book is that it is insufficient to challenge the status quo by suggesting changes to the law that impose a pollution licensing system or require new developments to have a planning permit. Effective reform requires changes to the governance systems and the underlying law that establishes and maintains those systems so that Earth jurisprudence can continue to inform important decision making all the time.

It is, of course, in addressing any problem helpful to acquire a full understanding of the problem. Sometimes, a better understanding makes the problem appear even more difficult to solve. It often seems hard enough to convince the legislators to improve the standards for pollution emissions. Changing the whole governance system can appear too difficult even to attempt.

An example of an attempt to change the governance system in a small way is the campaign in Australia for a Bill of Rights or a Human Rights Act. The purpose of such a campaign is to change the governance system so that, every time a law is passed or a governmental decision is made, human rights considerations are fully considered. The proposition seems reasonable almost trivial. That has not stopped the campaign receiving strong institutional opposition including from major media groups and from most political parties including many elements within the ruling Labor Party. Changes to the fundamental way of doing the business of government do not come easy.

This does not diminish the importance of Wild Law. Ideas may be entrenched within the dominant paradigm of government. Change may be difficult but drawing attention to the relationship between those ideas and the detrimental effects they produce is an important step in undermining and changing that paradigm. Ideas can only be challenged, ultimately, by other and better ideas. And the Earth continues to have its say as climates worsen and water and soil systems fail even the lords and masters of the Earth.

Stephen Keim SC

Footnotes

1. Cullinan’s work for government and international institutions is described in his Wikipediaentry as are his publications and a number of awards and recognitions that he has received for his writing and work. The entry is at http://www.wikipedia.org/wiki/Cormac_Cullinan
2. Siber Ink is a niche publisher of law, tax and accounting materials for the professional market in South Africa. Its website is at http://www.siberink.co.za/

3. The Gaia Foundation has been operating for more than twenty years. Its website is at http://www.gaiafoundation.org/

4. The firms’ website is at http://www.winstanleycullinan.co.za/f_people.html

5. The consultancy, EnAct International, is closely linked to the law firm. The consultancy’s website is at http://www.enact-international.com/people.htm