Extracts from Wild Law

Walking on the wild side

I know that “wild law” sounds like nonsense – a contradiction in terms. Law, after all, is intended to bind, constrain, regularise and civilise. Law’s rules, backed up by force, are designed to clip, prune and train the wilderness of human behaviour into the manicured lawns and shrubbery of the civilised garden. “Wild” on the other hand is synonymous with unkempt, barbarous, unrefined, uncivilised, unrestrained, wayward, disorderly, irregular, out of control, unconventional, undisciplined, passionate, violent, uncultivated, and riotous. In fact the “Wild West” of North America was described as “wild” specifically because of the general lawlessness that prevailed there.

It is precisely the rigidity of this false dichotomy between the “wild” and “law”, between “nature” and “civilisation” that we need to overcome. Like the Chinese symbol for Yin and Yang, both are part of the whole, and it is the dynamic balance that is important, not the triumph of one over the other. We need to find the wild Yin spot in the heart of the Yang of law, and also to perceive the core of law within the wilderness of Yin. Governing in a manner that stamps out wildness and promotes the dull conformity of monoculture is not desirable. Much of what is best in us is contained within our wild hearts. Wildness is associated with creativity and passion, with that part of us that is most connected with nature. It can also be understood as a metaphor for the life force that flows through us all and drives the evolutionary process. In this sense it has an eternal, sacred quality that both defines us and connects us most intimately with this planet.

“In wildness is the preservation of the world.”
Henry David Thoreau

Wildness is a quality that can only be experienced by straying off the orthodox path of civilisation as we know it. As we know, it is to be found most obviously in the wilderness, those special places where wildness rules. However, we would do well to remember that in many cultures the wilderness is also strongly associated with wisdom. It is the place to which people go in times of transition or confusion, and it is the place from which new insights emerge.

As will become apparent, particularly from Chapters Seven and Eleven, wild time, wild places and what used to be called “wild people” are all important for wild law. If all this sounds like gobbledegook, bear with me a while longer and I will try to give you a clearer idea of what I mean.

Earth’s rights

If humans are not the only members of the Earth Community that have rights and the source of those rights is not human laws, then we must ask ourselves what rights does Earth as a whole have and what rights do the other members of the Earth Community have? Of necessity this also means defining the rights of humans.

Within the Earth system the wellbeing of the planet as a whole is paramount. None of the components of the Earth’s biosphere can survive except within the Earth ecosystem. This means that the wellbeing of each member of the Earth Community is derived from, and cannot take precedence over, the wellbeing of Earth as a whole. Accordingly the first principle of Earth jurisprudence must be to give precedence to the survival, health and prospering of the whole Community over the interests of any individual or human society. Giving effect to this principle is actually also the best way of securing the long-term interests of humans. It is only our failure to appreciate that we are part of the Earth Community has led us to believe and act as if the reverse were true.

In looking for a way to express this in conventional legal terms, we could choose as an analogy the relationship between the state and it citizens in most legal systems today. The state, and the constitution that establishes it, are regarded as the source of all the rights of the citizen (with the possible exception of human rights). The state demands allegiance from it citizens and defines any citizen that attempts to destroy it, as a traitor, who is then liable to the most extreme forms of punishment available. I am not suggesting that Earth jurisprudence follow this model. However, it does to some extent convey that if we are to express the relationship between humans and Earth in legal language, the primary nature and fundamental importance of this relationship must be emphasised. It is not a relationship between equals but between the whole and a part. Accordingly, while the needs of the part must be respected, attempting to balance them against the rights of the whole is inappropriate. The rights of the whole cannot be compromised.

The “allegiance” that we humans owe Earth is therefore more analogous to that which a cell owes the body. The “duty” of the cell is to fulfil the functions for which it evolved and to continue acting in a manner that contributes to the health of the body. If it ceases to do so it dies or becomes a cancer. Similarly, our obligation to Earth is to play our proper role in the functioning of the Earth system and to act in a way that maintains the integrity or “wholeness” of Earth. If we cease doing so we betray the Earth Community which sustains us, and ultimately, our species.

Sacred land

“The land is our culture. If we were to lose this land, there would be no culture, no soul.”

Land is another name for Earth. We are of the land, given physical form by its minerals and the plants rooted in it, our minds and sense of beauty are formed in relation to its contours, colours, textures, tastes and smells, and we are destined to melt once more into it on death. Many cultures and philosophies believe that the life force or vital energy that animates us also flows through, and is concentrated in, the soil, rocks and plants. They also believe that this also means that we share a subjective presence, soul, or consciousness with Earth. In other words it is more accurate to conceive of land as being part of the physical body of a living being than as an inanimate object. Indigenous peoples throughout the world believe that people belong to and are shaped by the land, rather than vice versa. This truth was once recognised by most, if not all, human cultures but is now forgotten in the dominant human cultures. Indeed, conventional jurisprudence denies the mere possibility of land itself being sacred as opposed to being a place where religious rituals take place.

“You must teach your children that the ground beneath their feet is the ashes of your grandfathers. So that they will respect the land, tell your children that the earth is rich with the lives of our kin. Teach your children what we have taught our children, that the earth is our mother. Whatever befalls the earth befalls the sons of the earth. If men spit upon the ground, they spit upon themselves. This we know: the earth does not belong to man; man belongs to the earth. This we know.”

Speech by Chief Seattle (Sealth) in January 1854.
(The precise content of the speech made in response to overtures by the President of the United States to purchase land occupied by his people, is controversial. No verbatim transcript exists and there are several versions in existence. The first was published on 29 October 1887 in the Seattle Sunday Star were made by, among others, William Arrowsmith in the 1960s and Ted Perry in the 1970s.)

Whether or not you believe that land and Earth have sacred dimensions, the power that land exercises over the human mind and heart, is undeniable. Our cultures are full of the heartbreaking songs of exiles lamenting their uprooting from the soil of their youth. Compatriots far from home renew their bonds by recalling the landscapes, smells and places of their homelands. Anthems, ancient and modern, sing of the beauty of the land that defines the nation. “Soil” ranks with “blood” and “martyrdom” in the lexicon of the revolutionary.

Each one of us is intimately attached to the soil of this beautiful country. Each time one of us touches the soil of this land, we feel a sense of personal renewal.

Nelson Mandela (Speech at his inauguration as President of the Republic of South Africa, 12 May 1994).

Since all land is part of Earth, the relationship between humans and land is of central importance to Earth governance and Earth jurisprudence. At present the laws of the dominant cultures make it difficult for human communities to sustain an intimate relationship with land and hence with Earth. As discussed below, the understanding of land reflected in most laws reflects the myth that land is a commodity (despite the obvious fact that it was never manufactured for sale). By pretending that land is a form of commodity that can be owned and dealt with in a similar fashion to, say, a table, legal systems legitimise and encourage the abuse of Earth by humans.

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