2.1 Introduction
On the one hand, environmental law encompasses, actually or potentially, everything that may ever be encompassed by law in general. On the other hand, and simultaneously to the above, what we commonly refer to as the legal discipline of environmental law does not really exist. These two seemingly contrasting propositions, namely both non-existence and all-inclusiveness of environmental law, are one and the same thing. What seems mere sophistry, is actually, I argue, the foundational paradox of environmental law. With the boundary between human and environmental/natural collapsed, environ-mental law is left in a limbo of indifference (what would be its point?) and all-inclusiveness. The repercussions of such a paradox go beyond the rhetorical and touch upon the delineation of the field of environmental law, its object and objective, its limits and most importantly, its limitations. The paradox and its repercussions are the focus of the present chapter. However, I do not attempt to resolve the paradox,find a way out of it or indeed clarify the con-ceptual area in which environmental law applies. On the contrary, the purpose of this chapter is to expose the paradox and build on it. In so doing, I am conscious of the fact that I am making environmental law’s work harder. I want to think that I render visible a complexity that is consistently marginalised by environmental law’s mainstream theoretical and applied attempts, and expose the limitations of environmental law as well as its weighty and in some respects unique responsibility.
This is a strategic move. Amidst the tension between the opposing and rather aggressive sides (‘law-includes-everything and environmental-law-does-not-exist’), I want to carve a space for what I call Critical Envir-onmental Law. This space must remain a space of tension and self-generating undecidability, nowhere permanently anchored andflirting equally with the all or (better: and) nothing of environmental law. The term‘space’is meant in the most literal sense possible. It is an actual space of critique within environmental law, which situates itself away from barren debates on anthropocentricity versus ecocentricity, proof of causality, measurements of
harm and even differing prioritisation of temporalities (present versus future generations). Instead, the space of Critical Environmental Law is grounded on three‘catching up’necessities, namely three issues in which environmental law lags behind other disciplines and in which it needs to catch up if it wants to retain its relevance:first, the need to‘decentre’environmental law and to construct a theoretical approach that will not succumb to the usual hier-archical centralising but will wake up to its possibility of functional acen-tricity; second, the need to accept the fragmentation of environmental law with special emphasis on the collapse of the human as an individual (namely, undivided) and its replacement with hybrid connections between the human, the natural, the spatial, the artificial, the technological; and, third, the need to land environmental law on a theoretical grounding of difference rather than unity. These three elements define the way in which Critical Environmental Law is to be shaped and practised. In what follows, I attempt to sketch those elements within the context of environmental law, and relate them in parti-cular to the theory of autopoiesis, namely the sociological theory developed by the German theorist Niklas Luhmann. This is with a view to show that environmental law is a potentially decisive tool in these new turnings and tidings we are currently witnessing, and that such an opportunity is accom-panied by a deep responsibility. To address this, environmental law is in need of radical theoretical elaboration. In this respect, autopoiesis represents an ideal if rarely suggested bedfellow for environmental law. Before that, how-ever, a brief explanation of why I consider that in the heart of environmental law there lies an unsolvable paradox.
2.2 The paradox of environmental law
To start with the bravado of the type ‘environmental law does not exist’ is not a denial of the existing body of legislature and jurisprudence that deals with environmental causes. Rather, it points to the impossibility of defining any cause as environmental in a manner that would exclude claims from other branches of law. In support of this, it has been said that environmental law‘is not an organic mutation of the common law, or more generally, the western legal tradition … As a result, environmental law remains largely unintegrated into our legal system; thus, it is vulnerable to marginalization as support for environmentalism ebbs and flows’.1 Its reliance on envir-onmentalism aside, environmental law remains a sui generis branch of law, hazy yet urgent, undefinable yet omnipresent. Take a simple example: pol-lution is variously claimed by property law, landlord and tenant law, plan-ning law, public law, commercial law, intellectual property law, criminal law, administrative law, and then regional and international law, European Union or federal law, civil law, financial law, regulation, policy, soft law, agendas and declarations, preambles and protocols. And of course by environmental law too. But does anyone else apart from environmental lawyers care about Critical Environmental Law 19
this categorisation? And if so, is this just an identity quest for the lost girls and boys of the environmental legal lobby? Please indulge for a moment my suspicion that there is something else, a tad more important at stake here.
The other side of the same problem is an overcompensation in terms of claims of problems on behalf of environmental law in order to make sure that eventualities are covered. This has the potentially useful but more often debilitating consequence of considering everything more or less environmental.
It would hardly be out of place to suggest that everything can eventually be regulated by this conceptually expansive branch of law that swallows up large chunks of local, statal, regional, international and supranational legal agendas and is left wanting ever more. Arguably, this happens for good rea-sons. Environmental law is potentially the only law that in the current con-ditions remains ‘relevant’ – a relevance not only because of its close connection to the survival of the human species but also because of such issues as quality of life, health, poverty, gender equality, intra-personal rela-tions, adequate housing, societal organisation, urban development, interna-tional commerce, and so on. But this means that environmental law potentially embraces every aspect of life that remains relevant to what really matters. The same can be put from the point of view of risk. Seen from one perspective, the advancement of technology equals the multiplication of risks,2 and if risk precaution is environmental law’s most valiant radical representative,3 environmental law plays a potentially limitless role in the determination of‘acceptable’technology. And it would not be far-fetched to say that regulation of technological effects is to a large extent the main challenge of our society. Since technology increasingly mediates the relation among humans, and between humans and everything else (natural, artificial, technological) by even altering the connection between means and object of regulation,4legal processes that can be considered environmentalfind themselves popping up everywhere with more or less intensity.
The same paradox can be put from the perspective of time: environmental law’s temporality is one of a paradoxically imminent yet distant all-embracing horizon. Environmental protection matters tend to make their presence felt with unprecedented urgency, imposing deadlines concerning global survival, health and quality of life. While these present themselves in the present, they usually refer directly to the future. The temporality of environmental law is a hydrocephalous one, with the future weighing massively over present decisions– the most obvious example of which is the concept of intergenerational equity. Such a distribution of juridical weight requires of environmental law unprecedented degrees offlexibility that are accompanied by an uncomfortably intense and counterproductive checking for consistency.
The reasons for this paradoxical dis/appearance of environmental law are multiple: environmental law is considered a relatively new, relatively uncrys-tallised legal discipline, whose limits are both more flexible and tested sig-nificantly more intensely than those of other legal disciplines. This is the
direct consequence of the combination of inadequate epistemic distress and superabundant urgency: as yet there are few sustained attempts at the establishment of an extended, theoretically rich debate on the precise nature of environmental jurisprudential underpinnings. No doubt, this omission is also prompted by the idea that theory is counterproductive in the face of such acute and urgent problems.5The paradox is accentuated by the intensely fragmented societal presence of environmental law: calls for reliably consistent responses come from social domains as diverse as science, transnational poli-tics, global economics, ethics, environmental philosophy, geography, and so on. Take the example of sustainable development, a concept that incorpo-rates the handling of the conflict between economy and environment from within the law.6As a consequence, environmental law finds itself in a prac-tical continuum with policy and regulation. This is supplemented by an extensive use of the concept of soft law which deliberately oscillates between binding and non-binding law.7 It is far from surprising, therefore, that environmental law provokes social reactions that range from support and fanaticism to indifference and hostility. It has to play along and resist (un)fashionable environmentalism, persistent economic weighing (and, equally, remuneration, since both protection of the environment and protec-tion against the protecprotec-tion of the environment are lucrative), avid inter-nalisation of environmental issues by the political system, unsettling internalisation of scientific uncertainty, ethical reflection that urges towards paradigm shifts of the kind established law is unable to perform, and so on.
Perhaps the most important reason for the perpetuation of the environ-mental legal paradox is its intense connection to science.8The establishment of thresholds, for example, is only a minor theme compared with the formid-able task of risk prevention in view of lack of exhaustive scientific information.
The inherent necessity of environmental law – more than any other legal branch – to internalise scientific data demands ephemeral decisions and constant re-evaluation of already established problem-solving methodologies.
The ephemeral nature of environmental legal decisions is further demanded by the role that economic considerations play in decision-making, in the form of technology transfer, exploitation of biodiversity, and pollution allo-cations, amongst other mechanisms.9 ‘Environmental problems are char-acterized by the need to reduce their inevitable uncertainty through the constant generation and application of new knowledge. They often do not, as do many other areas of the law, display a repetition of similar fact pat-terns.’10 However, it is not only the patterns that change. The scientifically recommended way of evaluating such patterns changes also. Environmental law is a showcase of Murphy’s description of the future in the era of statis-tical positivisation: ‘[t]he future is reconstituted as inherently revisable sta-tistical projections on a screen’.11 The in-built need for revision of statistics renders shaky the connection between present decision and future stability:
‘it makes little sense to agonise over today’s decision when it is likely to Critical Environmental Law 21
require revision tomorrow’.12This, however, seems a major failure of envir-onmental law, at least in comparison with other legal branches. Put from a temporal perspective, the main function on the law is to fix over time the expectations that society has of what is permitted and what is not.13 The inability of environmental law to deliver such certainty as adequately as other legal branches do, seems to target precisely the ability of environ-mental law to become or even to be law. However, I argue that environ-mental legal volatility and inherent uncertainty are not a malfunction: they are simply inalienable attributes in view of the irreducible complexity of environmental law’s subject matter.
Thus, we have the paradox: environmental law is both a cut through other legal specialisations, itself undefined and undefinable; and inclusive of all other legal specialisations, claiming a space of direct or indirect‘integration’
in every legal decision, and eventually mediating every relation between the human and whatever else is left on the other side. While this may under certain conditions be a paralysing predicament, I opt for the time being to leave it unresolved, in full tension and in rather febrile potential for the identity of both the discipline and its lawyers.
2.3 What environmental law?
Etymologically, environment comes from the word environs, in its turn coming from the French wordsen(‘in’) and virer(‘to turn’). This implies an inside that stands erect and an outside that surrounds this inside and turns around it.14 Environment is the ‘thing’ that surrounds‘us’, the dervish-like outside that whirls like a frilly skirt around a stable pivot. But the pivot remains not only stable,fixed and unyielding but significantly‘central’. This can imply only one thing: that one can do away with the frills and stick to the thing in the centre. This centre, however, is occupied by an impoverished understanding of the human form: divorced from the animal except in the form of dependence, separated from the artificial except as technological (rather than natural) evolution, distanced from any sort of hybridity except as monstrous aberration, the human in the centre is a theoretical distillation of such conceptual purity that one would be hard pressed tofind anything comparable in the real world.
So it is the environment that is expected to skip and turn while the central theoretical construction, that of a purified human, remains imperiously stable. There are two fundamental problems with this formulation. The most obvious one is the implicit causality, where movement is understood as the precondition of stability. To put it differently, the turn is needed in order for the pivot to remain pivotal. The way the environment whirls around the human is a precondition for human centrality, indeed a resource (to use the environ-mental parlance when referring to the environment) for an adequate existence.
In the eye of the storm, there is quiet. But there is no connecting
transgression between the two: human and non-human, human and resource, human and nature. All mendacious dichotomies that betray a simplicity in conceptualising human nature. Where does human end and natural start? Where does technology begin being evolutionary? When are disasters natural?
The other problem revealed in the etymology of the word environmentis the assumption of a centralised geography, one that understands the observer, the utterer, the actor (in other words, the parameters of locating the mode of locating) as the centre of the environment. The thematisation of the surround-ings by the only one who has the linguistic ability to express difference (namely man, in the fullest gendered bias of the term) is reminiscent of Galileo’s trial, where the earth had to be torn out of the centre of the uni-verse, leaving an unbearable absence for the religious system of the era.15In Galileo’s mind, the static centre was replaced by a movement. Eppur si muove!‘Yet it moves!’For a brief moment, the turning has rolled over and flooded the inside, making the latter collapse under its own gravitas. But, even out of the ruins, a local universe was established in its proper syntax of centre and surroundings: thus,‘our’anthropomorphic planets and‘our’sun.
Order restored and stability re-established, albeit in a celestial body nearby.
And with this example in mind, one looks for the centre.
But things are changing.16Environmental considerations become integrated, environmental law is claiming a field, the purity of the human is strongly doubted. The environment is in a process of relocation, away from the per-iphery as the surrounding frills, and right on the gesture of transgression between human and natural. However, the reasons for the change may be less benign, less ‘ecofriendly’ than one would hope. It is not as if environ-mental law was born enlightened. It too has looked for its very own centre.
But the quest has yielded nothing but a void, or better, a series of questions.
Can the national valiantly occupy the centre? Would a move to the regional/
supranational/international prove more satisfying? Even more fundamen-tally, is really law in the centre of environmental law? Could one not argue with conviction that science, economy or even politics are in the centre of environmental legal decisions? And what about the centrifugal pulls of anthropocentricity and ecocentricity? The answer to these questions is deceptively simple: none of the above moves is in itself satisfying. So what is one left to do?Move away from the concept of the centre altogether. It is the case that environmental law has been pulling itself offthe grand delusion of the centre from its very (non-)beginning, from the heart of its paradoxical foundation. And this pulling away would have been much more obvious and eventually successful if environmental law was not tied down to some traits that seem to characterise every legal discipline, such as the need for systematic unity, for binding decisions of the binary kind, for a reliable reproduction of societal expectations, for consistency and constancy. But environmental law is different from other legal disciplines, its nature inevitably oscillating between Critical Environmental Law 23
law and non-law (science, economy, politics, media), between knowability and impossibility to know, between more or less risk, between present and future generations. No doubt some of these idiosyncratic features can be encountered in other legal disciplines too. However, their accumulation brings about an intensification of uncertainty that renders environmental law a trulysui generisdiscipline. One of the characteristics of such a nature, therefore, is also environmental law’s inherent marginalisation of the concept of the centre. Environmental law decentres the centre, responding to a new-fangled and profoundly unsettling discovery: that whatever was thought to occupy the centre around which the environment was required to turn and twist has long departed, leaving behind a barren nostalgia. Hence envir-onmental law’s simultaneous all-encompassing presence and disciplinary emptiness.
The other reason for the change is the fragmentation of the environmental subject. The artificiality of the division between human and natural as imposed by natural disasters on the one hand and climate change, on the other, is rapidly losing ground. At the same time, the traditional insistence on subject/
object distinction has been dramatically banalised by such ecological radical thinking as Christopher Stone’s proposition that trees should have standing.17 To link it with the previous comments about the etymology of the term
‘environment’, the separation between movement and stability is no longer impermeable. Environmental law has already observed the transgression between external movement and internal stasis, between environmental
‘environment’, the separation between movement and stability is no longer impermeable. Environmental law has already observed the transgression between external movement and internal stasis, between environmental