s/r home  | issues  | authors  | 42 contents
What Makes a Deep Green Lawyer?
by David Orton
Although not a lawyer, I have been contemplating what seems to be the increasing role being played by lawyers in the federal Green Party and what kind of theoretical perspective they bring to their participation. Lawyers seem to be disproportionately attracted to the various political parties and this seems increasingly true also for the federal Green Party.
Within the Green Party, a distinction can be made between “light green” and “deep green” people. This also becomes reflected among lawyers in the Party. This philosophical vision was first enunciated by the Norwegian deep ecology philosopher Arne Naess, when he discussed “shallow” and “deep” ecology.
Shallow, according to Naess, means thinking that the major ecological problems can be resolved within industrial capitalist society. Deep means asking deeper questions and understanding that this society itself has caused the Earth-threatening ecological crisis. The German Greens first elaborated this distinction as being between Realos and Fundis.
…environmental lawyers usually uphold participating in activities that allow industrial expansion to continue…
Lawyers usually try to make the system work for their clients. While we know that there are, thankfully, a few real dissident lawyers, a lawyer does not advance through the system by challenging publicly basic assumptions about the ideological foundations of industrial capitalist society—but it is these assumptions which any Green Party worth its salt should be calling into question.
“Environmental law” seems to be a growth industry and career path as our Earth increasingly falls apart. Over the last few years, there has been the entry of a number of lawyers into various environmental organizations. Thus the government-funded Nova Scotia Environmental Network is newly headed up by a lawyer who also has an MBA (Master of Business Administration). A statistic that made quite an impact on me came from the hearings of the Joint Public Review Panel for the Sable Gas Project in Nova Scotia in the ’90s. It was pointed out in a newspaper report that on any one day of the hearings there were about 65 lawyers present!
A lawyer can of course be useful, but only by attempting to manipulate the existing social system, not putting it into question. For example, when seeking a court injunction against a forest spraying program, biocide spraying is considered a legitimate activity.
What I have seen is that environmental lawyers usually uphold participating in activities that allow industrial expansion to continue (public hearings and environmental impact assessments) and that also give the illusion of citizen participation, even if these activities are shown to serve the Earth destroyers. It is in such institutional mechanisms where lawyers can ply their craft. Environmental lawyers become defenders of a dying industrial order when many activists have, through their own experience, come to see that this order has to go.
Environmental impact assessment hearings overwhelmingly end up ruling for the habitat annihilators and ongoing industrial expansion. Rulings favor the corporations and are against environmental, wildlife and social justice interests. The mountain of documents generated by the corporations seeking state legitimization for their destructive projects invariably concludes that the proposed projects will have “no significant adverse environmental or socio-economic impact.”
The rules of procedure for such environmental assessments are generally intimidating, complex and designed to basically exclude widespread citizen participation in favor of lawyers and professional lobbyists for those with economic interests in further commodifying the Earth. Any serious and determined environmental activist comes to eventually understand that the “rules of the environmental game” are stacked against them.
Environmental impact assessment hearings are about token “public” participation. Their basic purpose is to guarantee that the “work,” whatever it is, goes ahead with perhaps some token but almost always cosmetic changes. Those running the environmental impact assessment hearings go through motions of considering public comments, but the project’s proponent(s) inevitably win out.
What kind of law is being taken for granted here? Is it human-centered or Earth-centered law which we are being asked to comply with? What if these “laws” are in opposition to each other, even if anthropocentric law is the existing “law of the land?”
One might expect light Green lawyers to uphold beliefs in human-centeredness; that other life forms have no “standing” compared to the interests of humans and corporations; that one species — humans — can assert ownership over the Earth according to socially laid down rules; that Capitalism and Democracy go hand in hand; and that the court system delivers justice for all, not a class-centered justice. One might also expect light Green lawyers to believe that it is quite in order to accept honorific “social status” awards given out by the establishment, as marks of appreciation for their contributions to upholding the continuity of industrial capitalist society.
Now I am not advocating that we disregard so-called liberal democratic legality to operate in this society as a Green political party. All of us know that there are penalties for not complying with the various requirements facing a political party and for people who run as candidates. What I am asking is that we not bow down before “the law” but recognize that this law is there to perpetuate the industrial capitalist society which is destroying our Earth, and to which we are supposed to present a Green alternative. Our primary legal allegiance needs to be to “ecocentric law.” The belief in non-ownership over other species and their habitats is a fundamental deep Green belief.
The ecocentric lawyer
Here are some suggested characteristics for a deep Green lawyer:
1. Competency in understanding the ramifications of bourgeois law, i.e. the law of industrial capitalist society, as it concerns environmental and social justice issues, and the ability to “work the system” without being seduced and absorbed by the system.
2. Some record of actual participation in ecological and social justice struggles.
3. The deep Green lawyer works to simplify organizational and constitutional structures within a green party, so that the rank and file membership is included and not excluded.
4. The deep Green lawyer upholds the belief that humans are just one member of a community of all beings.
5. Control over land is fundamental to bourgeois law. Deeper Greens do not believe in ownership over the natural world. They believe that the Commons should remain common.
6. The ecocentric lawyer supports usufruct use, not private property in nature. This means that humans have the right of use, but not private ownership, of the natural world. A belief in ecocentric governance for the future needs to basically guide Green Party decision making and any advice that Green Party lawyers give.
7. Until ecocentric governance arrives, responsibility to the Earth and to future human generations must be reflected in environmental laws advocated by the Green Party. This would mean for example, that a “wood lot owner” must pass on her/his wood lot in a better condition, bearing in mind the interests of all the plant and animal species living there, than she/he received it in. (Note that “wood lot” is a human-centered term implying that the function of a forest is to produce timber for human consumption.) Those who destroy or degrade their wood lots should suffer social and criminal sanctions.
My own Green Party experience with lawyers is limited but I have been an observer of their behavior for many years in the environmental and green movements. There is some role for lawyers but they should not determine the overall direction of where we want to go, in the fight to replace industrial capitalist society with an ecologically and socially just society, which will represent not just humans but all the species on Earth and the planet itself.
A progressive social justice lawyer represents the rights of the socially disadvantaged and oppressed in society. A progressive environmental lawyer (they can be the same person) represents the creatures of the Earth who are disadvantaged. For the deep Green environmental lawyer, all life forms, whether animals, trees, plants, insects, etc., and also mountains and rivers, have “standing.”
My main conclusion is that light green lawyers have an occupational tendency, because of their socialization into a particular set of values, perhaps similar to those with MBA degrees, towards accepting and ultimately justifying the existing society which provides them with their living and their social status. This feeds into the human-centered eco-capitalist tendency within the Green Party. While we need to know, as activists, the “rules” governing industrial capitalism, we cannot allow such rules to be the determinant of Green Party behavior or policies. Greens should be an alternative to the ecologically destructive and socially unjust society, not an appendage.
David Orton is affiliated with Green Web, an independent environmental research group with a biocentric perspective.
[24 feb 07]