Systems theory characterizes the most complex problems confronting environmental law as essentially fractured among a variety of functional communicative systems. Taking this insight seriously, however, reveals that the most advanced tools of environmental law, such as the principle of precaution, must also be understood as similarly fractured. Noting the controversy that surrounds the principle, this chapter sets out to discover whether the disagreements may best be understood as arising from different system-specific constructions and whether such a finding might help to favour constructions which leave open its potential for rational decision making rather than those which essentially mistake it for other principles. This endeavour in turn calls for a methodological approach which can be efficiently deployed in an appropriate setting in order to tease out different system-specific constructions. Critical discourse analysis is proposed and applied in the reading of a key court judgement relating to the implementation of the principle in the context of a regulatory decision. The compatibility of critical discourse analysis with systems theory is addressed, with the suggestion being made that this can be achieved by understanding the latter as in essence the critique of critique. The hope is expressed that the chapter’s findings encourage others to consider the advantages that may be gained from understanding complex environmental law problems in terms of systems theory and specifically with the assistance of critical discourse analysis.
Environmental law has been developed cross-disciplinarily in close contact with empirical natural sciences on the state of the environment. With the increasingly more intensive and comprehensive interventions of human beings on the environment, defining environmental damage and hazards empirically as well as politically and normatively has become not only increasingly complex and controversial, but also crucial. How we assess empirical data, and how we conceptualize the values and the risks involved is decisive. Empirical and legal dogmatic methods are currently insufficient in terms of grasping the complexity of communicating environmental hazards. Communication and semantic theory is consequently suggested as a methodological approach in order to critically analyse more precisely the present state of environmental law, and how it could develop in order to convey the complexities of environment hazards in a legal language. It is suggested in the chapter that the planet has entered the age of the Anthropocene and, with that, an immensely complex environmental situation requiring new concepts and standards of environmental law. Sustainability and precaution have been tried out as reflexive legal concepts, but often losing conflictual situations to the more binary concepts of economic law. Applying the insights of theories of communicative differentiation is suggested in order to analyse more specifically what types of semantics and concepts are required to normatively express the current situation of environmental hazards and risks.
The following chapter argues that the term nature cannot easily be replaced by ecology and that numerous forms of contemporary philosophy attempt to abandon epistemology for a more ontological or materially focused approach. This shift away from epistemology leads to a knot of at least three interrelated problems: an overemphasis on a life-bound ethics that ignores biology; a tendency to gift subjectivity or thought upon other entities without adequate understanding; and lastly, an appeal to aesthetics as first philosophy without accounting for perspective. I address each of these problems and propose alternatives that collectively re-establish the need for a new epistemology to conduct ecological thinking.
Edward Mussawir and Yoriko Otomo
Over the past decade there has been a growing interest internationally in ‘animal law’ as a topic of legal study, sometimes taught as part of an environmental law programme, and sometimes taught as a self-standing course. More than in other fields of legal study however, animal law faces an intellectual terrain that is often polemical and rhetorical, with a reformist agenda. While the concerns that drive this mode of scholarship may be admirable, a focus on advocacy that seeks to draw on ‘good law’ to achieve its political aims or to make law good where it is currently ‘failing’ or ‘out of date’, renders it difficult to attend closely to the question of method in relation to law and the animal. It is difficult to think, in other words, about how the animal may be approached as a subject or object of legal knowledge when there is a presumption that ‘law’ is simply a passive repository for the ideologies of a progressive liberal society. In this chapter, the authors try to preserve a space for thinking differently about the methods and tools that can be brought to the field of animal law. The chapter presents a dialogue between its two authors who draw upon and comment upon their approaches to analysing the work that law does in controlling, constructing, destroying, and perhaps caring, for animal life. The authors explore in this way, some of the necessary but easily neglected facets of research method and conduct. They touch specifically on the ways in which it may be possible to attend to the animal either within the technologies of law themselves or in excess of their capacity to manage the boundaries between public and private, nature and culture, feminine and masculine, and the sacred and profane. (This critical impulse is, of course, indebted to a rich scholarship of critical legal theory and critical legal studies.) They also reflect on the pleasures and difficulties of using various research methods.
Corals have recently emerged as both a sign and a measure of the catastrophic future of life on earth at this particularly volatile time, referred to by some as the Anthropocene. As such, they have been the focus of intensive conservation management. Their symbiotic algae-bacterial-animal relationship and their precarious oceanic, ecological, and chimeric life make corals fascinating windows into biopolitical regimes of conservation. Corals are also ‘good to think with’ about the interface of culture, science, and law and about the particular ways through which law makes life. My chapter draws on a dozen in-depth interviews with scientists and policy makers, mostly in the United States but also in Australia and Israel, as well as on participatory observations of both coral and coral scientists, to explore how laws calculate and govern the project of saving (certain) coral life. I refer to this reflective, ‘breathing-with’ methodology, whereby the ethnographer submerses herself with the subjects or topic of her inquiry, as ‘immersive ethnography’. Utilizing this immersive ethnographic stance, my chapter recognizes the ‘becoming legalities’ of coral conservation, demonstrating that coral life and death are not only biological and cultural, but also legal, phenomena.
The text sketches out a methodology of ‘flat ecology’ for rethinking and reworking the present apparatuses of power – political, economic and legal – that engage in performing backgrounding of other-than-human bodies. By diffracting the concepts of assemblage and apparatus through epistemologies of feminist science scholars Karen Barad and Donna Haraway and ontologies of Deleuze and Guattari, and Object-Oriented philosophers, I formulate the concept of ‘minoritarian apparatus’ as a theoretico-practical tool towards seeking posthuman environmental justice. The second part of the text traces the methodology and proceedings of my collaborative performance all that is air melts into city (2014). The site-specific intermedia project creatively re(con)figured the apparatus of European Union Emissions Trading Scheme as a ‘minoritarian apparatus’, a posthuman ecology of difference that affords more just possibilities for meaning-mattering of extra-human bodies.
This chapter draws on the work of the French philosopher Michel Serres and his exposition of the notions of appropriation, the distinctions of subjects and objects, hard and soft pollution, and local and global perceptions, and discusses them as essential devices for the legal comprehension of the environment. This chapter has a triple intent. First, it aims to deploy Serres’s thinking on nature and its broken relation to humanity in order to recognise how law with its principles, functions and operations plays a significant role in constituting both this break, and this relation. Serres’s excogitation on law reveals that our relation with nature is intrinsically a legal one. Second, by identifying Serres’s understanding of the relationship between law and nature, this chapter offers a way into ‘sounding out’ environmental law, and importantly, to recognise law as antecedently ‘environmental’ (before even being called specifically environmental). At first glance contradictory but still within the aims of this handbook to provide novel methods to approaching and understanding environmental law, the final aim is to employ Serres’s ‘anti-method’ and understanding of knowledge. This important aspect of Serres’s idiosyncratic approach is gradually unfolded in the text that follows.
In the now official epoch of the ‘Anthropocene’, it is crucial that researchers adopt methodological strategies that are radical enough. This ‘radical enough’ is the demand of an environment which is not just ‘somewhat problematic’, but is falling apart, body-by-body. Only by really stepping into the field that is environmental law can we convincingly tell our story as though we are heading the urgency of the situation, as the more-than-humans we claim to be. Any step into the field is beset by ethical challenges and, occasionally, obstructions. This chapter arises from lessons learned autoethnographically in the field of sexuality and a challenge brought to the ethical basis of thresholds of participation. This personal method, which claims to bridge the chasm between the individual and the collective concern is fraught with ethical challenges, which I claim are not specific to sexuality research. Attractions and transgressions belong to all kinds of more-than-human desiring bodies. This means that a traditional ethical human framework inhibits the possibility of radical methodologies. ‘F#cking’ is not a banal and profane cry of resistance, but a radically orgasmic research ethic underpinning radical methodological strategies for the Anthropocene epoch.