Life beyond the law: From the 'living constitution' to the 'constitution of the living'

Among the many legacies left by Rudolf Bernhardt, the significance he
attached to the doctrine of the ‘living instrument’ is crucial. Accordingly, the
European Convention on Human Rights (ECHR) must be interpreted as
evolving and dynamic – as a ‘living’ organism. In this article, I reflect on what
it would mean to move from a ‘living constitution’ to a ‘constitution of the
living’. To answer this question, I consider what constitutes life itself – which
forms of life currently merit legal consideration and care. The argument
unfolds in three steps, each tracing a different way in which the protection of
life is being reconfigured against the backdrop of ecological and climate
change. The first part of the article is devoted to the ‘liberal response’ to ecological threats posed to life, which calls for a recognition of a self-standing
human right to a healthy environment to better protect human life. The
second part focuses on the ‘critical liberal response’, which advocates granting
rights to nature to safeguard nonhuman life. Finally, I explore how the
protection of life appears in critical posthumanist, new materialist, and decolonial
understandings of liveability. My objective here is not to propose a legal
reform of the institutional functioning of the ECHR, but to speculate about
how this ‘living constitution’ could ‘constitute the living’ differently. If the
metaphor of life acts as a ruling device in the interpretation of the ECHR,
only particular life-forms get protected, while others are eclipsed. I therefore
think with Bernhardt’s invitation to consider the ‘living’ nature of the ECHR
to reconceptualise the protection of life that animates human rights theory
and practice today.