Of Bees and Borat: Problems of Ordering Interactions and Subjecthood in Law and Nature

Activity: Talk or presentation typesInvited talkScientific

Description

Law has long been critiqued for ‘objectifying’ nature in a way that facilitates its exploitation and destruction by humans. Some scholars have even seen this objectification of nature as modern law’s original sin that ultimately has brought us to the Anthropocene today. It was supposedly at that moment when human law separated itself from nature, and began to use it for its own selfish purposes, forgetting or ignoring the fact that human life too is and always has been a part of ‘nature’ as well. One solution that some scholars have floated for undoing or reversing this exploitative and facilitating function of law has been to expand the domain of (human) law by ‘decentering’ humans and granting legal subjecthood to nature, or natural entities or phenomena, whether through ‘Rights of Nature’ or other constitutional or quasi-constitutional forms of recognition. The argument offered by this kind of approach is that it might be better or more appropriate for law to regard animals, or natural phenomena or geographic regions as subjects of law rather than objects upon which law (and human behaviour) acts upon. The presumption is that by becoming subjects instead of objects of law then humans will more appropriately value and respect ‘nature’ or natural phenomena (however conceived) as peers worthy of protection and entitlements under the law.

While I generally find such an approach unworkable and undesirable for a number of empirical, normative, and pragmatic reasons, it does nevertheless pose an interesting general question that is relevant to my broader research interests, which is what kind of positionally law should take vis-a-vis ‘nature’ in the Anthropocene? Current discourses about Rights of Nature posit a binary choice to be made between ‘nature’ as either subject or object, and many scholars in this vein propose giving natural phenomena legal subjecthood as a way for humans to return to a more ecocentric, or even ‘natural’ form of life. However, such propositions seem odd once one takes into account the empirical reality of non-human phenomena that is often labelled as ‘nature’ or ‘natural’. There is no evidence that any other species engages with natural entities or phenomena different from them as peers or ‘co-subjects’ in a shared normative framework. Indeed, while all of nature is ordered in one fashion or another, we have no knowledge that other forms of life order themselves through mechanisms like norms and rules as human societies do through ‘law’. Instead of ‘nature’ being awash with inter-subjective relationships, it is better described as full of relationships where lifeforms objectify other lifeforms or natural phenomena, whether making use of them for food or protection or reproduction, etc. If this is so, then, ironically, imagining human law to include other natural entities as subjects would be to imagine a quite unique and ‘unnatural’ form of social ordering (in the sense of it not existing anywhere else in nature, not unlike using nuclear power for energy).

Yet, despite this critique of the critique, a problem still remains in understanding how how ‘law’ should best orient itself with ‘nature’ in the Anthropocene. Problematizing efforts to grant legal subjecthood to natural entities does not change or remedy the history (and present) of human exploitation of nature, nor does it change the ontological problem of human society being a part of nature, even while it ‘objectifies’ it to suit its own needs. So, in short, how can human law orient itself appropriately to nature while recognising that human society is a part of nature (which suggests some kind of inter-subjectivity) at the same time that it objectifies (and continues to exploit) it? While it may seem odd to consider a legal system as being in a ‘relationship’ with something like ‘nature,’ in a way all discussions about legal subjectivity for animals or natural phenomena or geographic regions are all engaging with this broader question about what relationship(s) law does, can, or should have with them.

This paper will consider a way to think around this object/subject binary problem with help from an unlikely source, which is the scholarly interpretation and critique of performance art. It will analogise the struggle of art theorists to understand the subject-object relationships in performance art as analogous to the puzzle of law’s positionality vis-a-vis nature and natural phenomena posed above, and it will ask whether a middle ground might exist for law that is analogous to what art theorists devised for understanding performance art. In performance art pieces, both actors and spectators are ‘bodily co-present’, both physically present in a shared space, dynamically interacting in ways that are central to the performative experience. It is the material aspects of performance (like performers bodies and the space they inhabit) that contribute to the emergence of (object-focused subjective) meaning for the audience. The audience has to ‘objectify’ the performance artists in this inter-subjective experience in order to make aesthetic meaning-making possible. But the fact that this objectification is necessary does not take away from the relationship or demean it or make it less authentic or oppressive. Indeed, if the audience engaged and communicated with the performing artists as human subjects in a truly intersubjective relationship, then no aesthetic meaning making would be possible. Similarly, viewing law’s relationship to the non-human world depends on a human system of communication and ordering that is intelligible to humans, but that necessarily objectifies anything non-human in ways that are meaningful to both us as well as to non-humans. Having said that, whatever meaning humans and non-humans derive from their interactions are probably different and not mutually intelligible (for now?).

Just for clarity, I should emphasise that I am not making an analogy between ‘law’ and ‘performance’ or ‘aesthetics’. Instead, the analogy I am making is that the challenge that lawyers have with articulating the relationship between humans and non-human aspects of nature in terms of the category of ‘law’ is analogous to the struggle that art theorists have to understand the relationship between performance artists and their spectators in terms of the category of ‘art’. What is interesting for me is that when art theorists rejected the classification of performance art as a truly inter-subjective experience, this freed them in ways where they were able to talk meaningfully about the experience as ‘art’. I find that useful, and think that our present befuddlement with trying to understand human/non-human relationships as inter-subjective relationships also complicates our ability to talk coherently about those relationship in terms of ‘law.’ Thus, my main argument is that it is simply not necessary to get lost and tied up in knots trying to reimagine law as creating inter-subjective relationships between humans and non-humans, and that it is still possible to talk about those relationships in meaningful ways though doing so will require better understanding of those relationships and improving them in mutually beneficial ways, perhaps around new normative frameworks like ‘care’ as some have suggested.

The argument will be made here is that law can still meaningfully engage with non-human entities even if it is objectifying them. We cannot purge law or purify law from the objectification of non-humans nor can we re-fashion it to embrace new forms of subjectivities because as a form of human ordering law is not equipped to do that. When law objectifies nature it does not necessarily mean that law is or must therefore be denying nature’s subjective agency, but in stating this there is also an acknowledgement that in the absence of ways to meaningfully and mutually communicate with non-humans in ways that allow us to engage each other on genuinely inter-subjective ways it is difficult for law to do anything other than objectify nature. However, such an acknowledgement does not cancel out any normative call to better understand natural entities as objects of legal regulation, or to better understand and render meaningful signals that human society receives and interprets when it observes nature. Indeed, many calls for greater acknowledgement of non-human subjectivities can really be understood as calls for deeper knowledge and new forms of meaning-making about certain external objects. We have no means of communicating with the non-human world in ways where law can recognise a non-human’s subjectivity in ways that are not, at root, (human) law is barely equipped to do that very well (even between humans).

Period1 Feb 2025
Event titleAnimal Law and Jurisprudence: EU Law and Beyond
Event typeConference
LocationGothenburg, SwedenShow on map
Degree of RecognitionInternational

Keywords

  • Animal Law
  • Legal Subjecthood