POSTHUMAN/NEW MATERIALIST LEGAL THEORY

In the first article in this edition, Margaret Davies explores the connections between social and environmental justice and the implications of a posthuman, eco-social materiality for the legal concept of private property. Davies begins by setting out a relational move away from a Western, extractive and colonial perspective of human society and its relationship to land towards a co-becoming eco-society, inter-reliant on integrated eco-social networks, communities and habitat(s). Using the concepts of fragmentation and rift, Davies explores the material disintegration of biological, physical and cultural entanglement – a process that has resulted in ongoing environmental injustice, ecological degradation, appropriation and disconnection from the very conditions of existence. Davies then turns her attention to private property, which she argues ‘enshrines both the rift between human and nonhuman and the fragmentation that characterizes eco-society’, a system that requires radical rethinking towards a more relational, responsible and integrated understanding. Using the concept of habitat, Davies argues that a relational form of property with obligations owed to human and nonhuman life will ensure a system more equal and inclusive for owner and non-owner alike.

The second article in this edition considers the legal representation of the nonhuman. Using the guardianship model as developed by Christopher Stone and the concept of eco-feedback, Matt Harvey and Steve Vanderheiden investigate communication between human and nonhuman. Drawing upon both law beyond the human legalities and New Materialist theory on nonhuman subjectivity, Harvey and Vanderheiden explore the ‘Lorax problem’ – that is, the problem of whether a legal guardian can ever truly communicate the needs and interests of their nonhuman charge. Drawing upon New Materialist scholarship, the authors conceptualize a vibrant materiality in order to illustrate the potential for nonhuman forms of agency, challenging the guardianship model’s restriction of subjectivity to the human realm, and extending agency from the atomistic human individual to what the authors call ‘swarms’ or conglomerates of human and nonhuman actants. This signalling of vital materiality, they argue, is a form of communication that challenges the exclusionary human/nature, subject/object binary found in law.

MORE-THAN-HUMAN INTERNATIONAL LAW

Nick J Fox and Pam Alldred open their contribution, and the contributions on the theme of a more-than-human international law, by offering a theorization and development of ‘a posthumanist and new materialist approach to sustainable development policy’. To this end, their contribution to the Special Issue charts a pathway between humanism and anti-humanism to establish a posthumanism of the environment and an understanding of ‘posthumans’ that challenges both environmental anthropocentrism and the model of the human as white, male and from the global North. Thus, while ‘posthumans’ are ‘a fully integral element within the environment’, they should no longer be considered to be an amorphous category as is sometimes implied by concepts such as the ‘human species’. To be sure, ‘“posthumans” gain a diverse range of context-specific capacities as they interact with other matter’ and some of these capacities – for example, empathy, altruism, conceptual thinking and modelling futures – are very unusual. Yet, these ‘unusual capacities’ might be key ‘to addressing the current crises of environmental degradation and anthropogenic climate change’.

In the fourth contribution, Emily Jones continues the focus upon international law and suggests that both posthuman theory and the RoN movement have the potential to challenge the anthropocentrism of international environmental law. Scholars, she argues, have begun to document transformative shifts that could occur through the application of posthuman legal theory to international environmental law, but these theories have yet to be applied to law in practice. While RoN have been applied in domestic law, they have been applied comparatively little in international law, while the question of what RoN includes and excludes remains contested. Jones brings posthuman theory and RoN together, reflecting on how posthuman legal theory might contribute to the framing of RoN, with a focus on challenging the anthropocentrism of international environmental law. She argues that the next step for posthuman legal theory will be its application to existing law and, noting convergences between posthuman legal theory and the RoN, contends that those seeking to apply posthuman legal theory might find alliances by turning to RoN. Meanwhile, using posthuman theory to frame RoN could help to ensure that RoN live up to their transformative potential.

Marie-Catherine Petersmann embraces the disorienting and destabilizing rupture of the Anthropocene/s with respect to international environmental law and the Modernist onto-epistemology upon which it is ‘grounded’. She sees in this moment a generative opportunity to rethink the animating forces and motivations of environmental jurisprudence. Living amidst Modernist ruins, both physically and metaphysically, provides Western-descended legal orders with the prospect of reformulating fundamental assumptions. Drawing on a variety of New Materialist, relational and posthuman literatures – and informed by critiques of them by decolonial, Indigenous and black scholars – Petersmann seeks to bring environmental law into line with these literatures and their emphasis on the necessity, and inescapability, of more-than-human relations. Rather than deploying responsibility and protection as focal organizing concepts (which presuppose a separation between human beings, their Liberal States, and the nonhumans they command and control), Petersmann advocates for response-ability and care. This is not, however, care for but rather care with, which acknowledges human always-already entanglement and earth-boundedness, and seeks an open-ended moral exploration from a position of humility and vulnerability. Being involved, rather than in charge, being relationally embedded in the materiality of the world, requires an orientation that is in excess of the rigidity of environmental law as it is currently practised, she argues.

MULTI-SPECIES JUSTICE, ART AND RELATIONALITIES

Danielle Celermajer and Anne O’Brien seek, in their article, to extend the conceptual framing of transitional justice beyond the bounds of the human. By applying transitional justice (which focuses entirely on how wrongs committed between human beings can be repaired) to the alterity of soil as a moral agent, the authors pursue the possibilities that such a shift affords to alter the underlying assumptions of transitional justice itself. By shifting away from reflexivity and subjectivity as assumed preconditions for transitional justice, and aways from its concomitant emphasis upon victim and perpetrator, Celermajer and O’Brien focus upon the relation itself as the fundamental ontological unit. This focus opens space for a non-hierarchical transformation in practices and embodied relationships, and facilitates a reassessment of the systemic wrongs between human and more-than-human. This ambitious task of re-encountering the ‘limit case’ that is soil – something of which Western society seems to have an overwhelmingly utilitarian and instrumental vision – as morally considerable thus requires new forms of attentiveness, and the humility to acknowledge epistemic limits. The authors conclude their article by exploring the ways in which artistic work has already begun to rework these conceptions and relations, hoping to see how these kinds of practices might aide in generating the forms of publics necessary for the more-than-human social order to be repaired.

Teresa Dillon uses art practices as a generative site of focus in order to explore the enactment of multispecies relations within the context of urban environments. She examines multiple artistic installations and works which seek to bring into presence nonhuman animal cultures, histories, rituals and justice so as to create living frameworks for living otherwise. Affective confrontation with these other-than-human lives destabilize the categorizations of ‘animal’ and ‘nature’ upon which present anthropocentric lawscapes are built. To foster multispecies justice, Dillon argues, constant, public, educational and social rehearsals can be called upon in decentring the human and destabilizing the particular form of liberal individualism that law presently promulgates. In so doing, these rehearsals might forge ontological openings that create more equitable conditions for all. For an increasingly city-bound species, beset by climate emergencies and biodiversity loss, a more expansive vision of the urban commons is required if we are to have urban futures at all.

CLOSING REFLECTIONS: ALTERITY, POWER AND THE CHALLENGES OF RELATIONALITY

As the authors of this Special Issue have eloquently communicated, conventional models of environmental law and governance in the West particularly, but exported throughout the world through colonization and globalization, continue to insist on the separation of law, society and Earth systems. This ontology of separation affords a limited capacity to respond to the pressing social-ecological challenges of the age: climate change, biodiversity loss and the profusion of differing forms of social-ecological injustice. As these challenges so starkly illustrate, the nonhuman can no longer be considered to be a mute object of conventional normative description, of appropriation, or of protection in need of human ventriloquism.

Foregrounding the need to pay attention to forms of life beyond the human in legal thought and practice, the contributors to this Special Issue have offered a sophisticated range of posthuman approaches and conceptual devices, including: the need to re-centre response and care in international environmental law (Petersmann); thinking-with soils as moral agents in the context of transitional justice (Celermajer and O’Brien); learning what it means to enact multispecies relations in urban space and earth-bound legalities (Dillon); probing posthuman theory and the RoN movement to challenge the anthropocentrism of international environmental law (Jones); learning how ‘posthumans’ as agents gain a diverse range of context-specific capacities to face different environmental global challenges (Fox and Alldred); asking what it means to speak for the trees (Harvey and Vanderheiden) and reconsidering property as relational habitat (Davies).

As these authors have identified, much of this work has its antecedents in Indigenous legalities, cosmologies and intellectual labour. And while it may be possible, and aspirational, to consider Indigenous legalities as a site of generative friction, of competing cosmologies, such reflection raises not only questions of alterity but also significant questions of researcher positionality, agency and power.

Mills writes that there is a fundamental incommensurability between legal orders based upon differing forms of constitutionalism, which themselves are rooted in differing lifeways or outgrowths of differing ontological arrangements.³¹ Contemporary power remains heavily weighted towards liberal idealism and marketization, and gives force to Mill’s fears of constitutional capture. There is a genuine question concerning the extent to which theorization and scholarship can contribute to the broader decolonial undertaking without simply continuing a form of colonialism by appropriating and/or pilfering from Indigenous legal orders. How might scholars and researchers seeking a new paradigm, a more life-affirming onto-vision, avoid such trespassing? Here, appropriative risks attach to questions of translation and capture. Much work has been put into trying to honour Indigenous ‘law as law’ and there is much to laud here.³² This same orientation is visible in legal anthropology and the old cultural relativist injunction to see the cultural elaborations of all human beings as being on the same level and as equivalent in categorization. However, (neo-)Structuralist questions aside, this approach still results in the effacement of, as Bateson put it, ‘differences that make a difference’.³³ Indeed, there remains a sense in which the incommensurability between legal orders observed by Mill problematizes the very basis of traditional legal anthropology: is it even possible to compare law across ontologies, or is equivocation uncontrollable?³⁴ And with what implications for power relations? These questions will not be answered here, but they remain ever relevant, central to an ongoing posthuman research agenda, and they must be addressed in order to achieve the transformative potential of the agenda itself. Relationality is not without its challenges.

The authors in this special edition largely agree that law requires a paradigm shift towards relational thinking. But we ask, as anthropologist Arturo Escobar does as he works with Afro-descendant and Indigenous collectives in the Colombian Pacific region, how might it be possible to ‘activate relationality’ in legal theory and practice?³⁵ Again, questions abound. Is speaking on behalf of nonhumans an insurmountable limit to a posthuman legal agenda? What kind of theoretical and methodological tools does a law beyond the human offer in concrete scenarios of education, decision-making and adjudication? Can Davies’ concept of property as habitat be operationalized in current legal systems? How? Will eco-feedback as set out by Harvey and Vanderheiden be sufficient to engage and represent eco-communities in law? Beyond the RoN approach, how does a law that is entangled with local territorial practices challenge anthropocentric and colonial concepts of justice, agency and value? These fundamental questions of relationality and its activation remain potential limitations of a posthuman legal agenda.

Here, as editors, we identify four particular challenges for a posthuman law, law beyond the human, that for us are signalled by the contributions to this edition.

First, (i) an over-reliance on human representation as the only way to engage with the legal: law is conventionally defined as a system of normative statements, that is, as language, or a form of symbolic representation. However, law, as our authors have made clear, can also be defined as a non-symbolic system comprising material dynamics, ecological relations, lived experience, artefacts and dreams, among other sources. Harvey and Vanderheiden pursue this line of approach in their article when they frame eco-feedback as a necessary basis for reformulating environmental law. Building on their work, and extrapolating from it in combination with a broader range of approaches, it is possible to imagine re-grounding law in a bold ontological and methodological assumption that humans are not the only thinking selves in the world.³⁶ More broadly, this means that ‘life thinks’, or that ‘life is semiotic’³⁷ – that soils, oceans, beetles, plants, fungi, fish and mammals are not only sentient but meaning-making selves.

Second, expanding the notion of representation (and even more so, materio-semiotic agency) to more-than-human beings and collectives has profound (ii) methodological implications for legal thinking and justice in Western legal systems. More-than-human beings, given onto-epistemic significance in law, open out alternative ways of perceiving law – new expressions of law as entanglement, law as materiality. This kind of law seems to exceed propositional form (language) and thus to require non-propositional methodologies, as gestured towards by Celermajer and O’Brien’s article in this collection. Such a broad, attentive definition of law would be untenable unless ‘we’, humans, become perceptually open to modes of socio-legal agency that exceeds us. Law would thus become a mode of, for example, making decisions or adjudicating justice for which ‘human’ perspectives and textual methodologies are understood to be but one among many ways of meaning-making in a larger cosmological meshwork of life forces and ways of doing and acting in the world.

The challenge of ‘hearing’, however, remains. How can humans ‘listen’ to the ‘law of a territory’ or the ‘laws of habitats’ where human and more-than-human lifeways are deeply entangled?³⁸ Reckoning with the limits of human representation brings us to the third challenge for a law beyond the human: the possibility of (iii) formally incorporating – with some degree of analytical precision – non-representational methodologies into legal decision-making: How can law listen to non-propositional kinds of law that exceed – and yet inform – legal language in specific contexts and at different scales (local and global)? Translating across worlds – of the forest or ocean, for example – into a legal world of symbolic language will require sensing, minimally, into worlds of non-symbolic language (ie, image, corporality, ritual, dreams), and might require multiple and different techniques. As Petersmann has argued in this collection, the only way for a law worthy of the environment to proceed is for such law to emerge from within human always-already entangled relationalities – legal, bodily, affective, and otherwise – in the more-than-human world. Does a ‘law beyond the human’ need a methodology beyond the law?

Dillon’s work in this edition gestures towards at least one answer: by exploring what it might mean to enact multispecies relations in urban spaces through contemporary art practices. These, as she shows, can create living frameworks for encountering nonhuman animal cultures, histories, rituals and justice, with which she interrogates conventional legal methodologies from the vantage point of these artistic practices. She eloquently summarizes the promise of such methodologies: ‘This is the power that art holds. It provides possibilities for conjuring up worlds, which even if they fail, still “work” as imagery scaffolds through which we can collectively grip onto the ontological changes that are at stake’.

This brings us to the fourth challenge: (iv) the challenge of imagining a law beyond the human while necessarily engaging with the very categories of thought and language that at present continue to sustain conventional legal thinking and action: languages of nature, rights, property, etc. Contributors to this edition ‘de-centre the human’ and aim to ‘re-centre the posthuman’ in law by proposing ways in which legal fields such as international environmental law and property law can be pushed beyond conventional modern frameworks into networks of relationship and care, as Jones and Davies both suggest. However, a question remains concerning the degree to which a radical posthuman/New Materialist agenda can be truly transformative while law still deploys its current categories and scholarship is necessarily forced to engage with its dominant constructs.

A LAW BEYOND ‘THE ENVIRONMENT’?

While we have signalled some of the existing difficulties of cross-ontological comparison and engagement, it is nevertheless our hope that this collection gestures towards a potential transformation of law. Such transformation, it seems, is nascent in multiple ways, and would imply a shift away from individual rights towards relational being and responsibility; from an extractive and appropriative legal system towards an integrated eco-social legality embracing norms of non-oppressive restorative responsibility. Breaking open the binary division between nature and culture transforms the onto-epistemic underpinnings of law, diversifying its participants, re-imagining its subjects, transforming its modes of emergence, relationality, operations and performance while inviting ‘other kinds’ of legal thinking and practice. A law beyond the human is also a law beyond symbolic representation alone – an acknowledgement that already exists to some degree in legal anthropology and Indigenous legal theories. While attention to the other-than-symbolic forms of legal reckoning and nonhuman non-symbolic communications populate these fields, such modes of meaning-making are ignored by mainstream legal theory and liberal legality. These remain fixated with the analysis of (exclusively inter-human) social relations and are overwhelmingly sociocentric.

This Special Issue has been an invitation to readers to appreciate other kinds of law that emerge from non-modern ontologies, from Indigenous cosmologies, from nonhuman voices ‘in their own right’ and from posthuman and New Materialist theoretical perspectives, as applied through legal theoretical analysis and – here too – reflections on artistic practice. Law can also be – as our authors have shown – an outgrowth, a co-emergence, of ‘something else’. Law expresses relationalities, between kinds of beings, assemblages and ‘things’ (as Bennett would put it³⁹) with their own ingenious communicative modes and abilities (as many of the authors collected here point towards). If it is indeed the case that other-than-human beings are as agential as the RoN aspirationally describes, as posthuman theory and New Materialism insists, and as animist Indigenous peoples attest to the world over, then the notions of nature and therefore of environment must be reassessed and perhaps even abandoned entirely unless they can be reformulated in ways that do not preclude the very possibility of agency in the other-than-human world. In a sense, then, in this edition, as editors, we seek to encounter law anew and otherwise, both beyond the human, and after ‘the environment’, offering the potential for a re-grounding of law that exceeds (Modernist) ‘nature’.