With customary acuity the American anthropologist Margaret Mead once said that: ‘We won’t have a society if we destroy the environment’ 1 and in this deceptively simple statement she effectively encapsulates the indivisibility of the lot (indeed the now almost foreseeable future fate) of humanity and the environment of which, we now recognise, we form part. This sense of continuity or shared predicament (if that is the right word) between ourselves and the environment leads us neatly into the topic selected for this edition of the Journal: ‘ontological vulnerability’. What, many readers may well ask, exactly is it? As the authors’ contributions make clear, attempting an answer garners both simple and complex levels of response. In basic terms ontology is the branch of metaphysics that considers the nature of existence/being. Vulnerability is variously defined herein: as being concerned with the susceptibility of an individual or a system to risk (Kirby); the exposure of individuals and communities to environmental insecurity as the provisioning capacity of the environment is impaired (Rajan); as the manifestation of presence: ‘as soon as one is present, one is vulnerable’ (Philippopoulos-Mihalopoulos); and as the quintessential ‘affectability’ – or the ‘openness’ of corporeality itself (Grear).
While the notion of the ‘ontological’ may seem a somewhat unusual concern for a primarily legal journal, the notion of ‘vulnerability’ has gained much currency in law and policy in recent years and is now arguably part of mainstream legal culture. For present purposes the conjunction between these ideas presented by the term ‘ontological vulnerability’ focally invites consideration of the ability (or otherwise) of individual humans, communities and the ecosystems/environment of which they form part to respond to risk and/or impairments to sustenance (Rajan). Furthermore it invites reflection on our nature and the nature of the environment as beings and systems possessing a fundamental openness or porosity – as being always exposed to the ‘draughts of the world’ (Philippopoulos-Mihalopoulos). These themes, on even the most cursory examination, reveal profound concerns relevant to human rights and environmental law, and to the commonalities between them.
The concept of vulnerability has been much discussed in a number of academic disciplines, particularly in the fields of disaster management and food security, and increasingly in relation to climate change adaptation. It has moreover begun to be theorised in more general terms as a critical normative thesis addressing the perceived shortcomings of the operative traditional assumptions of mainstream liberal political and legal theory. The concept has also been much used in an arguably growing number of areas of social praxis, in particular with respect to risk assessment, and has gained undoubted sway in a number of important areas. The UN, for example, has employed the language of vulnerability for a number of years, especially in respect of its analysis of climate change and its impacts – a field in which the application of ‘ontological vulnerability’ is highly apposite as, perhaps more starkly and immediately than any other issue that we face, in this context it is clear that there is, in the end, to be no privileged position on offer that will enable humanity to fully escape the consequences of the damage that our activities have wrought on the environment. While the wealthiest and most powerful elites among the entrenched beneficiaries of all that the modern world has to offer may be able to adapt to certain of the threats posed by the prodigal (ab)use to which we have put and are putting the environment, in the short term at least, current predictions point to the real danger of encountering a disastrous ecological tipping point that will leave no room for anyone to hide. As Philippopoulos-Mihalopoulos clearly indicates, technology and technological optimism cannot save us – ultimately no one and nothing is insulated from the threat to existence posed by incipient ecological collapse. Ontological vulnerability forms, in this sense, a stark bottom-line reality – a bio-material non-negotiable against which we, and the living world we have ravaged, find ourselves pressed. Moroever, as Grear and Sunga indicate, despite the grand vision of the human rights project many less privileged human beings are already (and disproportionately) facing the impacts of environmental degradation and all that it entails on a daily basis. The burdens that this imposes are significant in their own right but, in a vicious circle, environmental degradation also serves to aggravate other problems already experienced by the most vulnerable among us, and these are only set to worsen as conditions further deteriorate. Thus the supposed ‘universality’ (and the claim to a catholic availability and application that this entails) of human rights is rendered highly contestable – as Grear's analysis of the incipient inequality of legal human rights ideology suggests. Related to this we should note that more than half a century after the Universal Declaration it remains the case that human rights, although widely promoted in principle, are still abused wholesale in practice to an extreme degree in a small number of states (as observed by Sunga) but also, albeit to a much less marked degree, in all states. Environmental law fares no better despite decades of, at times, feverish legal activity, for environmental law is, as Philippopoulos-Mihalopoulos observes, signally failing to halt the erosion of the viability of the planetary ecosystem, a process threatening its crucial capacity for life support.
What then has brought us to this pass? First and foremost our laws are fundamentally shaped by our societal epistemology. In this context, then, it is crucial to recognise the long shadow cast by the Enlightenment on dominant Western legal culture. This is discussed by Rajan through the lens of a historical account of the admixture of aesthetic, religious and utilitarian positions informing ‘classical environmentalism’ – which Rajan distinguishes, in turn, from environmental human rights. Key to an understanding of Enlightenment epistemology and its foreclosures, and central to a critical reading of the overarching philosophical commitments linked with environmental degradation, is the rhetoric of Cartesian dualism and its equation of the environment with the objectified ‘other’, to its practical and legal detriment – a process imbuing the environment with an inevitable vulnerability in the face of resultant human exploitation. The limitations of this heritage prompts Bosselmann, building on his own earlier work in the field of sustainability law, to promote a fundamental re-shaping of the law through the invocation of ‘an ecosystem approach’ as a more viable alternative. Grear's response to the legacy of Descartes and Kant, in particular, is to identify the exclusions operative within this dominant, panoptical Western model of legal culture, drawing links between those excluded from the embrace of international human rights protection and the environment itself as a reflection of Western philosophical ‘othering’. In response to the foreclosures of Cartesian dualism she argues passionately for a view of humanity and environment as radically intertwined, corporeally united as elements of a vulnerable living order, suggesting the need for the development of a jurisprudence responsive to the necessary continuity between self and environment and for a reformulation of our approaches to law and ethics accordingly. Philippopoulos-Mihalopoulos also rejects the Western external überperspective that informs modern society and the law which it creates, and seeks to respond to the imperatives of the new ecology that rejects the very notion of boundaries between humans and the environment and recognises the continuities between, and indeed indivisibility of, the human and natural worlds. A further, but no less significant, legacy of our history and culture is the fact that law expresses and serves the goals of our (now globalised) capitalist society. The myriad problems that this entails are clearly indicated in a number of the authors’ contributions, by Kirby, Grear and Bosslemann in particular, as they point to the subversion of human rights and environmental laws to serve the ends of corporations and the economy rather than serving their ostensible beneficiaries. In short the authors offer a multifaceted critique of the status quo.
Considering the, at best, limited successes and, at worst, abject failures of both human rights law and environmental law to deliver even by their own lights, can looking at the issues again through the lens provided by ontological vulnerability offer any further illumination? If all was in practice as the law in principle indicates that it should be, then an ontological vulnerability approach would arguably be largely redundant. However, as the divorce between what ‘ought’ to be and what ‘is’ is often so very stark, it may well be that ontological vulnerability approaches have something significant to offer both in terms of critical engagement with current theory and practice, and in offering pointers for forging better future directions. As is very clear from Kirby's contribution to this edition, ontological vulnerability approaches to analysing social praxis are strongly linked to the understanding of risk that, to paraphrase Ulrich Beck, characterises modern society. At the same time ontological vulnerability perspectives also attempt to engage with real-world complexity and, indeed, the world as a complex system. By integrating responsive capacity into the equation, as for example in Kirby's concept of resilience, vulnerability-based approaches may offer practical solutions to some of the most profound problems that we face. In so doing they level the ground somewhat and shift the focus of ethical consideration beyond the often closed decision-making community of government, expert and industry/commerce to consider also the agency of consumers/citizens, questions of empowerment and disempowerment, and considerations of structural injustice and unequal agency.
The question which remains, however, is whether or not ontological vulnerability approaches simply state the obvious. On a superficial level perhaps we could conclude this in so far as all who live are inherently susceptible to threats to our well-being. On a deeper level, however, given the signal failure of the great human rights project to deliver universal applicability even on its own terms, perhaps the thesis is not at all redundant. In fact, considering the level of social, economic and not least environmental crisis that the ‘business as usual’ approach to rights has brought us to, it would seem at least timely and arguably imperative to look again at the ethical basis that underpins our world order and the law that it both expresses and gives expression to. Ontological vulnerability minimally provides a useful alternative lens through which to consider how our ways of being impact on our ways of doing – and not before time.
At <http://womenshistory.about.com/cs/quotes/a/qu_margaretmead_3.htm> (last accessed 02/11/10).
Karen Morrow - Centre for Environmental and Energy Law and Policy, Swansea University, UK