What makes a deep green
lawyer?
by David Orton
The
earth does not belong to humans.
Arne Naess
Deep Ecology For The 21st Century, p. 74
EIA (Environmental Impact Assessment) is a
grandiloquent fraud, a hoax and a
con ... it anoints and blesses
the
process of ‘development,’ ... Ecology is thus
used as a tool to
permit ‘developers’ to continue to do what they have always
done.
Canadian
eco-philosopher and naturalist John Livingston, in his 1981 book,
The Fallacy of Wildlife Conservation, p. 33
Hello fellow
Greens:
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. (For a Canadian presentation on light green/dark
green
distinctions, see Judith
McKenzie’s Environmental Politics In
Canada, chapter one, “Green Political
Theory.” ) We need to
understand these two defined positions as being part of a continuum of
values.
(In electoral green party
circles, it was the German Greens who
first elaborated this distinction as being
between Realos and Fundis.)
Understanding such distinctions could be important for the political
course
the federal Green Party embarks
upon, if lawyer members become
influential with their advice. For
example, when lawyers give
positions to the membership on Constitutional changes, and tell us that
“we
have to comply with the law."
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.
In an
organization like the Green Party, any move towards
constitutional complexity favours the
lawyers or the interests of
people who park themselves within the organization, so that the lawyers
come
to have “expertise” over “what
the constitution says” and the
arcane nuances of Roberts Rules of Order.
They can become brakes on new
thinking. We should not forget that the Green Movement, and
presumably
Green Parties, are supposed to come up as ALTERNATIVES to the existing
ecological and
social order within this society.
Emphasizing existing
legality is not only alienating for members but ends
up marginalizing the
participation of most, except for the organizational insiders.
I consider it
very bad form, no matter what the provocation, when
greens or environmentalists who are
lawyers, or the federal Green
Party
itself, threaten to use the court system, one of the pillars of the
existing society, to sue fellow
workers for the Earth, allegedly
because of “libel.”
I have the
good fortune to know a lawyer who is a supporter of deep
ecology and who applies this in
his understanding of all matters
legal.
I also know a lawyer locally who, while not fully ecocentric, is very
socially progressive. She is a
people’s advocate. She acts, without
monetary incentive, for those shafted
in various ways by the existing
system and who are seeking redress. I admire her greatly.
Environmental law
“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 which, at one time, 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 if one is seeking to obtain
something, but they do it 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, and it is
not acknowledged that
the court system nurtures the industrial capitalist status quo and that
corporate
money can influence court rulings.
What I have
seen is that environmental lawyers usually uphold
participating in activities that allow
industrial expansion to
continue, e.g. public hearings and environmental impact assessments,
and which
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. Thus
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. The late John Livingston, in his 1981 book The
Fallacy of Wildlife Conservation,
showed many years ago, how fraudulent
such environmental
assessments are, from the
perspective of Earth
preservation and social justice.
Environmental
impact assessment hearings overwhelmingly end up ruling
for the habitat annihilators
and ongoing industrial expansion.
Rulings
favour 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 conclude 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 favour 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. There 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) normally inevitably win out.
Green Party lawyers
So what does
the above have to do with lawyers in the federal Green
Party?
The important
question we need to ask ourselves is, are we putting
ourselves on a leash when
considering the advice of Green
Party
lawyers? 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? And 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, and don’t have a privileged
position at the expense of other life forms. She/he sees that all
species have standing and intrinsic worth, in an
ecocentric legal
sense. Nature is not seen as a
“resource” for human and corporate use,
and is used only in a respectful way to service vital human
needs.
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.
Conclusion
I hope this
posting contributes to a discussion of the role of lawyers
in the Green Party. My own Green
Party experience with lawyers is
limited, but I have been an observer of their behaviour 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 behaviour or policies. Greens should be an alternative to the
ecologically
destructive and socially unjust
society, not an appendage.
I should
perhaps say that I will be voting for the environmental lawyer
who is running for the leadership
of the Green Party in August
2006,
although some of the above analysis is also applicable to her.
However,
in my judgment, Elizabeth May is far and away the best of the
available light green candidates
for the leadership of the Green
Party.
David Orton, August 2006
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Last updated: August 20, 2006