This chapter seeks to approach environmental law education through a ‘speculative’ methodology of entropy in environmental law practice. It is suggested that entropy as the basis of a theory of ‘complexity’ is helpful in teaching environmental law, accounting for the complex myriad of relations between humans, non-humans and their environment, as well as relations and rights that we are yet to understand. Processes of entropy are speculative as they take in to account the dynamism and preponderance of chaos, uncertainty (‘hyperchaos’) and the unknown within and outside law and its surrounding environment. This is important in teaching environmental law, given the ever-changing and interconnected nature of the world around us. A speculative understanding of entropy therefore is argued as supporting both understandings of linear and nonlinear time, or in forms that we may not even have the words as yet to describe, thus placing understandings of space and time at the heart of environmental legal education and practice. Clinical legal education is presented as offering new possibilities of speculative environmental law practice that account for a speculative understanding of entropy, using the pedagogies of ‘Skill City’ and ‘Walking the Lawscape’ as illustrative examples.
In an attempt to bring critical environmental law to a discussion with the current planetary challenges such as the Anthropocene and climate change, and understand the methodological challenges that ensues from such a discussion, I suggest three basic tenets from which environmental law can be examined: grammar, perspective and methodology. Grammar refers to the need for new concepts and ways of connecting the various bodies that participate in and consist of the environment. To this effect, I suggest some terms, such as continuum/rupture, human/nonhuman/inhuman, as well as geologic immersion and planetary withdrawal. Perspective refers to the way current thinking changes or at least is affected by the Anthropocene. Finally, methodology refers to the way critical environmental law must find ways to seek knowledge and the epistemological presuppositions of the limits of such knowledge. In conclusion, I offer four methodological demands of critical environmental law in order for the latter to adapt methodologically and integrate the Anthropocenic grammar and perspective.
Environmental law and its students stand accused of ignoring space. The degree of reflexivity given to law by jurisdiction, history, political favour and case-by-case flexibility is chimeric rather than substantive, serving only to further ensure law’s hegemonic attempts to conceal geography and to silence non-human voices. This chapter will demonstrate how analyses of vernacular knowledge and plant perspectives in particular unsettle the universalist, anthropocentric and essentialist gaze of environmental law, while at the same time offering explanatory power hitherto concealed. An alternative methodological pathway for the interrogation of environmental law, revealing its hidden tenets and consequences, as well as a potential opportunity for reform, is presented. To transform its vision and impact environmental law must interrogate its universalist, essentialist, anthropocentric and also utilitarian assumptions. Such a transformation involves a finer-grained attendance to geographical conditions, including not only spatial but also temporal diversity, change and emergence, as well as the incorporation of non-human perspectives and a de-centring of the human. Such lessons of contextualization and deep democratization have relevance for law and policy analysis more generally.
Jane Holder and Donald McGillivray
As a response to the increasing combining of environmental activism and environmental scholarship, in this chapter we discuss what an environmental justice perspective brings to research in environmental law and we argue for environmental justice to act as a central and motivating purpose in this field of research. In terms of the development of critical research methods to support this we draw upon classic studies of environmental justice, as well as our own experience of using case studies to research environmental assessment and the protection of open green spaces. We suggest that collective case studies (also known as multisite or multiple case studies) offer an opportunity to map out and build up a picture of common concerns and losses and similar experiences of legal hurdles and challenges on the part of geographically disparate local communities. This type of case study is capable of revealing broad discriminatory and unfair practices in environmental decision making which may form part of a pattern of lack of influence and participation in decision making extending beyond the specifics of a particular site, environmental conflict or legal dispute. We outline several critical research stances which might usefully be engaged in this process of centring environmental justice by providing a framework for analysing sets of case studies: taking ‘everyday’ evidence seriously (in recognition of the procedural and distributional justice implications of the generation and application of evidence of risks and harms); identifying local/global interactions (recognising the frequently unjust dynamics which arise from the organisation of space – spatial justice implications); and the significance of spatial relationships, especially according to feminist approaches (relational justice). More practically we outline the nature of collaboration and partnership arrangements between academics and environmental campaign groups which are stimulating and supporting the development of communities of practice aimed at the sharing and application of legal and campaigning knowledge.
This chapter examines how the Third World Approaches to International Law (TWAIL) movement has approached environmental issues through division into three phases: first, the period following independence, particularly the 1960s and 1970s, where Third World international lawyers prioritized natural resource governance; second, the inauguration of the acronym TWAIL in the 1990s and a movement that remained largely sceptical of and disengaged from international environmental law; and third, the contemporary moment with a resurgence of interest in the environment within TWAIL. I structure my description in three phases on the basis of the predominance over time of different methods, approaches and attitudes on the part of Third World international lawyers to the environment. TWAIL scholars self-identify as a movement more frequently than as a method. While Third World approaches have some shared methodological characteristics that this chapter identifies, ultimately it is our political commitments that unite us, including a keen awareness of the politics of method and its implications for knowledge production.
Francois Venter and Louis J Kotzé
As the world is sliding deeper into a profound global socio-ecological crisis, humanity must innovatively rethink ways to use its regulatory institutions, such as law, in an effort to mediate this crisis. To this end, convincing arguments are emerging in favour of constitutionalising environmental protection and the domestic and international legal and political systems that are aimed at environmental protection. Environmental constitutionalism has recently emerged as a term of art explicating juridically elevated environmental protection through constitutions. In this chapter we argue that, while an important paradigm in itself, environmental constitutionalism, both as a concept and framework in an analytical sense and as a normative programme, can greatly benefit from a comparative approach that would seek to enrich it. A comparative approach to environmental constitutionalism, including the methodologies that carry such a comparison, could augment environmental constitutional protection in specific countries and globally through trans-jurisdictional processes of cross-pollination. The chapter first reflects on the meaning and value of constitutionalism and constitutional comparison (section 2); moving on to explore in more detail environmental constitutionalism and its emergence (section 3). In section 4, we describe comparative environmental constitutionalism and provide a selection of considerations that could form part of the environmental constitutionalism comparatist's tertium comparationis. These considerations are generally representative of the (often overlapping) elements of the contemporary constitutional state and include: the rule of law, the separation of powers doctrine, judicial independence and review, constitutional supremacy, democracy, and rights. Throughout, we provide insights into the importance of environmental constitutionalism as a methodological approach.
There is a growing awareness of the need to reconsider the traditional range of investigative approaches used by both lawyers and geographers as we grapple with improving the management of human impacts on the environment. In this chapter I describe a model for legal research that embraces method and methodology from the social sciences that has the potential to expand the scope and impact of research in environmental law. The argument stems from my scholarship, situated at the intersection of law and geography, which explores the connectedness between people, place and law. In such research there are ever-present core questions about the effectiveness or efficacy of environmental legal regimes. My concern is to understand whether environmental laws actually achieve what they set out to do, and this is underpinned by my working hypothesis that a better understanding of place should both inform and improve how environmental law operates. Accordingly, the methods employed in my research range from an analysis of codified law through to primary data collection, based on qualitative research methods. In my work considerable weight is placed upon the identification and critical assessment of the laws, formal and informal, that restrict the way in which local populations interact with their lived-in landscapes. This takes the form of a legal discourse analysis on the regulatory situation governing a particular place, and, as with much legal scholarship, such an approach necessarily highlights many of the deficiencies in the existing legal framework. However, this is complemented by an equal interest in the human–environment interface. To fulfil the need to explore the human/place/environment dynamic I adopt the ‘muddy boot’ tradition of geographers to develop an understanding of how people respond to regulatory regimes. In this chapter my aim is to expose the linkages between human rights and environmental protection scholarship with the place-based work of (human) geographers. This is an ambitious project; there are manifold challenges in linking the universalising narrative of human rights to enhance environmental protection. Yet, the vehicle to undertake this venture falls, arguably, to law and geography scholars – those interested in exposing the relational, heterogeneous and place-based dimensions of our world. The work of legal geographers can extend environmental law scholarship beyond an abstract conception of space towards a clearer, situated understanding of the importance of place in creating effective protective regimes. This is part of a turn towards creating a legal geography methodology in which there is a greater reflexivity about the methods of research (see I Braverman, N Blomley, D Delaney and A Kedar (eds), The Expanding Spaces of Law: A Timely Legal Geography [Stanford University Press 2014], Ch 5).
Some might wonder why it is necessary to include an ecofeminist approach in a volume on environmental law research methodology. There are a number of reasons why such an approach can add value to our consideration of environmental research: not least, it offers an important counter hegemonic critique of societal engagement with the environment and one that complements other important differential perspectives, such as those of indigenous peoples, and can therefore enrich our understanding of important environmental issues. Just as compellingly, ecofeminist approaches to engaging with environmental questions offer a powerful potential corrective to current dominant, gendered, methodologies which have proved to be of limited effectiveness in addressing environmental degradation. Ecofeminism, with its methodologically distinctive drive to achieve a working fusion of theory and activism, and its commitment to encapsulating the relevance of lived experience in addressing societal challenges, potentially has a great deal to offer in the endeavour to harness the artificially yet routinely sundered conceptual and practical approaches to environmental issues that is arguably a factor retarding progress in addressing complex, large-scale, socially embedded environmental issues. The impetus towards the synthesis of systemic thought and lived experience also recognises the necessity of fostering broader participation in the crafting of environmental policy and law responses to the major environmental problems of our time. To this end ecofeminist methodology employs innovative approaches towards garnering a wide range of gender perspectives that address the neglected complexities of women’s vulnerability and agency as environmental actors. This chapter looks specifically at climate change and the eventual emergence of gender in the United Nations Framework Convention on Climate Change (UNFCCC) regime, through making a case and ultimately obtaining recognition for the gender constituency in this, the chief institution of global climate governance. This ongoing process has seen women employ feminist approaches, such as transversal politics (with which this chapter is chiefly concerned), as vehicles facilitating the construction of knowledge and coalition-building to good effect in adding weight to their case for inclusion and ultimately influence in this most crucial, contentious, contested environmental law and policy context and arguably offering richer treatment of the substantive issues than hitherto.
Peter Burdon and James Martel
The dominant method in environmental law is reductionist, doctrinal, solution focused and betrays an unacknowledged belief in the ‘end of history’. Moreover, it is open to a very narrow and highly privileged range of perspectives. By contrast, this chapter draws predominately on traditional and contemporary anarchist literature to advance an alternative legal method. We begin by recovering key insights from the social ecologist Murray Bookchin. Of particular relevance to this paper is Bookchin’s materialist understanding of the environmental crisis and the conditions for social change. Following this, we draw on writers from Peter Kropotkin to Max Haiven to describe the role of ‘activist research’ in environmental law. This involves collaboration between researchers and people involved in environmental movements under study, and by hybrid activist/academic identities on the part of researchers.
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.