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

(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

                        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

            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


            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