This chapter examines the intellectual phenomenon of theoretical aversion in legal scholarship, as it specifically manifests in environmental law. It first demonstrates how a proposed turn to methodology seeks to constrain theory within the strict contours of an epistemology that serves to support the scientific aspirations of legal scholarship. This notion of theory as epistemology is in turn linked to environmental law’s overwhelming concern with controlling the relation between scholarship and action for the purpose of constituting itself as valid expert authority in the context of contemporary environmental discursive practices. Building on the critique of this view of theory as a pure research design element, the chapter articulates a different perspective, recovered from theoretical excess and inspired by the life and work of Michel Foucault, which merges the distinction between scholarship and action via the – correct – use of the metaphor of the ‘tool box’, often mishandled in Foucauldian scholarship. By reorienting this metaphor, the chapter argues that the contestation over the precise role of theory within environmental law relates to the historical evolution of the current role of the legal researcher who is expected to function solely as an expert on environmental change. The task of critical environmental law thus becomes to resist the assigned role within the established regime of environmental truth and to make novel and expansive contributions of the ‘tool box’ of environmental thought and practice.
The formative years of biodiversity conservation in the 1980s were dominated by a series of essentialisms—population, rainforest, resource—that set the stage for a North-South dynamic built upon an orientalist pattern: the North proposed and the South reacted. This period also witnessed the formal entry of the concept of biodiversity into the corpus of international environmental law via the adoption of the Convention on Biological Diversity (CBD). This chapter examines the confluence of these two phenomena.