Catastrophic environmental degradation and a changing climate is arguably the most urgent challenge facing human and non-human life in our time. Scholars in a plurality of fields are increasingly characterizing this challenge in terms of the “Anthropocene.” This concept characterizes the present moment as one where past and ongoing human activity has altered atmospheric, geologic, hydrologic, and biospheric processes to such a degree that they are producing climatic change and biodiversity loss events on a scale that may be beyond the capacity of existing political and legal frameworks to manage.
The purpose of the CitA project is to investigate and interrogate the many legal facets of the Anthropocene, whether as a concept or as an empirical reality, and how it defies and upends our prevailing notions of what law is, what purposes it serves, what makes it meaningful, and how it could, or should change into an uncertain future.
The scale of change that the Anthropocene poses for law is enormous, so much so that it threatens to destabilize the ways that humans have used law to distinguish their societies from one another; or from Nature; or the global from local; or the public from the private. The Anthropocene brings all of these into question and doubt. It also places them on an accelerating conveyor belt into an increasingly uncertain future that begs a massively important question: what role for law in the Anthropocene?
To answer this, CitA’s intellectual ambition can be envisioned as three interlocking themes that together investigate, re-imagine, and link law to the wide range of complexities implicated in and by the concept of the “Anthropocene”:
Neither bounded or specific, these themes are intended to be broad, open tents that gather, encourage, and inspire creative and innovative thinking about law in the Anthropocene in new, multi-disciplinary, and often difficult, ways.
Holocene-era dichotomies that distinguish living humans from everything else currently inform our notions of collectivity and reflexivity that are the basis of contemporary understandings of global constitutionalism. What are the conditions under which the ‘we’ in democratic decision-making could include future human generations, non-human entities, or even nature itself into ‘terrae-dictions’? How is membership in collective-decision making to be reconfigured? What kinds of reimagining are required of the conceptual foundations of representational practices in enlarged decision-making collectives? How might nature, non-humans, and future generations engage our collective responsibility as co-subjects of law in the Anthropocene? What values might underpin an enlarged collectivity and collective decision-making?
In the Anthropocene, human dignity becomes only one dimension of a greater appreciation of vulnerability whose normative core is shared by a human, animal, and non-animal rights. In this frame, recognition and care must take on greater importance as drivers of responsive ethics that can orientate decision-making within these enlarged collectives.
These notions must also be able to interact with appropriate scientific and political modes by which this imagined enlarged collective is to be imagined. For some, this kind of embedded world representation could or should be the ‘Earth System’ and its manifold composite biochemical system processes.
Thus, to even be able to contemplate any ‘constitutionalizing’ in the Anthropocene with enlarged collectivities requires new political, moral, and legal epistemologies that will permit us to articulate the new bases upon which effective and legitimate regulatory, institutional, and governance structures and practices may be built to incorporate and integrate them in the future.
The expanded collectives of the Anthropocene will profoundly affect our understanding of regulation in the form of directing constituent behaviours towards collective goals. Our prevailing notions of what regulatory instruments, objects, and relations will require thorough transformation as the very notion of what it means to ‘regulate’ at all is challenged. Holocene-era regulatory and governance mechanisms are narrowly preoccupied with behavioural change and human agency in ways that limit our capacity to deal with a world that is rapidly transforming in ecological, social, economic, and other ways, but also with any greater sense of responsibility for and shared vulnerability with any enlarged collective that surpasses the merely human.
Changing this will require recognizing that regulatory problems of accountability and territoriality take on new meanings when nature, non-humans, and future generations are embraced as new subjects of regulation within enlarged Anthropocene collectives. Existing regulatory structures will therefore need to be re-evaluated, and new forms of accounting must be contemplated as we grapple with technological advances in novel fields like genetic and climate engineering that, for better or for worse, are able to harness nature itself in ways that present startling regulatory opportunities and risks that transcend all of our regulatory dichotomies that currently sharply distinguish humans from nature.
What kinds of accountability frameworks, therefore, are needed to address both effective as well as destructive emergent technologies? How best to deal with their potential to disregard as inconsequential the territorial boundaries and geographic delineations that our prevailing national and international regulatory mechanisms currently rely upon?
More profoundly, though, one needs ask what constitutes a legitimate instrument of regulatory intervention in the Anthropocene at all? How can we continue to distinguish public goods from objects of private ownership and trade when emergent technologies transcend them both?
The Anthropocene similarly challenges the institutionalized structures of accountability and governance to which we have become accustomed whenever we consider any notion of an expanded trans-human collective. This requires contemplating the transcendence of the very human/nature, public/private, and global/local dichotomies upon which our current institutions of law and governance have always been structured.
It is far from obvious what kinds and degrees of institutional change will be required of our governance systems to embrace changes to legal subject hood and expanded notions of who or what constitutes the ‘we’ in the Anthropocene. Indeed, profound questions abound about what the subjects and objects of governance should be, how they could or should inter-relate, and how and from where they might derive or provide the legitimacy and accountability that would be needed to govern democratically in the Anthropocene.
Earth System Governance (2023)