[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Cesare Cavallini & Oreste Pollicino review Fritjof Capra & Ugo Mattei’s book on The Ecology of Law (BK 2015)]
—Cesare Cavallini, Full Professor, Bocconi University & Oreste Pollicino, Full Professor, Bocconi University
Why should two scholars of civil procedure and constitutional law be interested in reading about the ecology of law?
It is with this question, which is posed with tongue firmly in cheek, that we would like to start this brief review of The Ecology of Law by Fritjof Capra and Ugo Mattei. The book’s title itself embraces a challenge, although at the same time also sets out a programme–or if you will a manifesto–along with a clear acknowledgement of a problem, or perhaps the problem of our time.
A radical change in attitude is emerging within science–as the authors demonstrate with a scholarly yet highly readable account of the evolution of law throughout history along with the development of philosophical and scientific thought–which entails a shift from a mechanistic interpretation of the world towards a systemic and “ecological” worldview. The world is no longer regarded simply as a “machine”, being an aggregate of distinct and separate constitutive parts, but rather as a “network” comprising a system of inseparable relations, characterised by fluid and self-organising communities, each capable of generating various types of “common good”. However, as will be noted below, its activity is not limited solely to generation.
In fact, while the concept of “ecology” exemplifies and at the same time simplifies this new approach, the “law” on the other hand still appears to be trapped within the old paradigm under which it must be focused on mastery and control over nature.
Thus, according to the authors, to reason in terms of the ecology of law entails first and foremost guiding the cives or the omnes towards “eco-literacy” in the sense of an effective acknowledgement that the issue of sustainability–which is often bandied about–is the issue of the future. The law too cannot remain insensitive in the face of this challenge.
Readers could appreciate this aspect–as we certainly have–as being genuinely decisive. Nevertheless, any reader who is usually inclined to study, to understand and even to apply civil justice cannot fail to be fascinated, but also quite doubtful of the feasibility and the outcomes of the reinvigorated system of protection which may be discerned within the authors’ approach.
In the eyes of a procedural jurist, one main question arises almost spontaneously out of Capra and Mattei’s book: Is civil justice a “common good”?
As things stand, it is–just like health–a common good that can be furthered also through the private sector. If the system is conceptualised in “ecological” terms, where the various forms of common good occupy the terrain of the rights of the omnes, can justice take on the function and the role of the common good? And can it do so, we dare to suggest, by definition? This would change the rules governing access to judicial relief, first and foremost in terms of those with standing to bring actions: it is evident that it would no longer lie with individuals who take action in order to obtain confirmation of their individual rights, but rather with any person–albeit still an “individual”–acting with exponentially enhanced standing. The individual would still take action to seek relief against a specific violation of the common good, although would do so at the same time in order to protect the wider community which could benefit from that good. This in turn would end up reconfiguring the current system of protection, but at the same time it should presume a very difficult refoundation of each general category of the rights and the remedies, moreover within a global law context.
These are in fact suggestions and questions that cannot fail to strike a chord also with constitutional experts for whom, irrespective of the level and hierarchy of the sources that may from time to time be relevant, it is the constituent function of the law that is of primary importance.
Under this scenario, “constituent” must be understood in its most authentic meaning as a transformative and emancipatory function of the legal toolbox, which must be reshaped in the light of an ecologically oriented interpretation, or even–and why not make this suggestion–an ecologically oriented manipulation.
Whether dealing with the theory of sources or the theory of interpretation (although also of manipulation), the constitutional expert would probably claim to be less interested in resolving inconsistencies between the sources of law, which may be settled according to the prevailing criteria of the ordre constitué, and to be much more curious about an axiological perspective that is capable of remodelling and even overturning that very ordre constitué on the strength of an ecologically informed interpretation.
This is in the first place, as mentioned above, a transformative dimension. In particular, as the authors point out, this will entail the transformation of “legal institutions from extractive machinery–based on the mechanistic operation of private property and state authority–into institutions based on ecological communities”.
In the second place, it is added, it also represents an emancipatory dimension. In particular, emancipation means freeing up “the power of individuals to make claims under the law as a common good, based on our interpretation of the world as a system, which will enable us to protect the planet for future generations”.
These are fundamental questions which will disorient classical jurists, who are used to moving within their comfort zone characterised by localised points of certainty along with gradual and incremental changes to the legal system as a whole, which pin them down to accepting responsibility for the choices made by the system.
It would be banal to simplify as a radical dilemma between choosing whether to continue to wander aimlessly and unwittingly towards the abyss of the irreversible destruction of our ecosystem (one need only consider how the resilience of the ecosystem is being dramatically eroded, against a backdrop of silence and indifference, if not even ignorance) or rather choosing to change, to endorse a transformative vision establishing a new legal order.
The challenge and the less strong point of the book is the lack of a clear compromising bridge between legal realism and legal imagination.
In the light of the framework sketched out above, the next question would appear to arise almost automatically: Is contemporary constitutionalism capable of offering an outlet for this transformative and emancipatory vision, or is it rowing completely against the tide?
The answer is probably no, even if various opportunities of not secondary importance can be discerned.
It is undeniable that the constitutions of the post World War II period have only in part moved beyond the liberal paradigm under which private property is granted absolute protection and has almost sacred status. In fact, while it may be the case that ownership rights within a democratic welfare state that is also (generally speaking) pluralist have been complemented by the injection of a healthy social aspect, ownership obviously remains a right with a highly individualist connotation.
Even if we were to seek solace in the European courts, we would however be disappointed. Whenever the Italian legislature and the Constitutional Court have attempted to reduce the level of the already “considerable redress” payable to expropriated property owners, the European Court of Human Rights has always intervened and drawn attention to the interests protected by property rights and the need to avoid any sacrifice of the owner’s rights. Moreover, this must inevitably be the case considering the principle laid down by Article 1 of the First Protocol to the ECHR. Hardly any scope is left for the balancing and weighing of the countervailing interests of the public at large.
However, as mentioned above, certain qualifications have been made, which render the outlook less bleak.
First and foremost, there have been increasing references within the latest generation of Latin American constitutionalism to the seeds of that transformative and emancipatory shift referred to above.
Two Latin American countries, Ecuador and Bolivia, have developed a genuinely ecological form of constitutionalism. More generally, this tendency has spread throughout Latin America, as has been shown by a renowned criminal lawyer and justice on the Supreme Court of Argentina, Eugenio Raul Zaffaroni (La Pachemama y el humano, Ediciones Colihue 2012), who has developed a constitutionalist theory of ecological nature in which the Earth and all living beings within nature, including in particular animals, are vested with rights.
Secondly, although according to the authors private property and state sovereignty constitute the two linchpins on which the mechanistic and dehumanising view mentioned above is based, it cannot be denied that the process of European integration and the exaltation of multilevel constitutionalism have given rise to a (dissipating) poly-centrism within, if not a fragmentation of, state sovereignty.
Of course, this is only a tentative start, a pars destruens, which will not be sufficient on its own, although it is a necessary condition to establish the (re)construction of a new order, or at least to achieve a substantial improvement in the current order. It would have been very useful to see a construens pars, beside the quite well argumented destruens pars.
Suggested Citation: Cesare Cavallini & Oreste Pollicino, Review of Fritjof Capra & Ugo Mattei’s “The Ecology of Law”, Int’l J. Const. L. Blog, Dec. 31, 2017, at: http://www.iconnectblog.com/2017/12/book-review-cesare-cavallini-oreste-pollicino-on-fritjof-capra-ugo-matteis-the-ecology-of-law
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