Leiden Law Blog

An exploration into uncharted legal territory

An exploration into uncharted legal territory

I was pleased to find a book recently in which a fascinating relationship is revealed between the  scientific worlds of law and physics. The book, entitled The Ecology of Law, was already published in 2015 and is the result of a collaboration between physicist Fritjof Capra, well known of course for the bestsellers The Tao of Physics and The Web of Life, and lawyer and activist Ugo Mattei. They believe that it is high time for the legal world to update its underlying, but very outdated, scientific view, which was created by people like Descartes, Bacon, Newton, Locke and Hobbes hundreds of years ago. To help us to deal with the crises facing us today, they argue that the legal world must adopt the holistic approach to science, as for instance expressed in systems thinking. According to them, this new approach involves a thorough revaluation of our ideas about private property and the commons; but also letting go of top-down ways of legislation and handing back law to the communities where it originally belonged.  

The humanist interpretation of Roman law

I am aware that their vision is way too comprehensive to be captured fully in this blog. But by pointing to some of its important elements, I hope you still get a good idea of what the book is about. They start by reviewing the legacy of the Roman legal system which laid the basis for the mechanistic approach. In this system private property and ownership, which at that time was exclusively limited to an urban elite, was a central element. Much later, during the period of the ‘Scientific Revolution’, Roman law helped the humanists to legally justify fencing off the commons and turning them into private property. The commons had existed everywhere in the countryside, in a system of long-term relationships and mutual duties between the individual and the community. From that period on the unwritten laws, on which these commons were based, were no longer considered ‘real law’. Although Roman law had made a distinction between ‘things which belong to no one’ (res nullius), ‘things which belong to everybody’ (res communis omnium), and ‘things of the city’ (res publicae), 16th century humanist interpreters exclusively focused on res nullius, which provided the legal basis for turning the commons into private properties.

The legacy of Hugo de Groot and John Locke

Capra and Mattei go on to argue that through the work of (legal) scholars like Hugo de Groot and John Locke the spirit of the Scientific Revolution, in particular Cartesian rationalism, has also deeply influenced the shaping of legal theory and of the framework of the legal institutions. Interesting in this respect is that, according to them, De Groot used ‘objective, universal principles based on reason’ to serve the powerful VOC clients, and Locke – in line with new physical ideas about movements of separate atoms and molecules – attempted to reduce the observed phenomena in society to behaviour of individual beings. In the ‘New World’ the Western rational legal system continued to develop its ‘extractive potential’: the idea that the land on which the indigenous people lived was not so much belonging to everyone but belonging to no one – in other words, qualified as res nullius – justified the widespread acquisition of land and natural sources. This way – the authors observe – rationally based natural law became the instrument of exploitation and robbery.

Top-down legislation

They state that a fundamental legacy of early modernism is the top-down realisation of human legislation, which is still very much alive today: by making the transmission of legal knowledge from one generation to another an exclusive university affair, bottom-up legal customs established by the community are systematically marginalised; the limitation of the choice between the interest of private property and state sovereignty prevents the development of other viewpoints; and this professionalisation process has taken law away from the communities, where it originally belonged.
Capra and Mattei believe that the communities should be given back the control of their own legal order. They think that this is especially important now, as for the first time since the birth of the modern state the private sector has become more powerful than the government: the financial crisis of 2008 has made this very clear. In this respect, the book also shows to what extent the economic and legal worlds have always been inextricably interwoven.

Towards a bottom-up, holistic legal view

Capra and Mattei suggest we should come to realise again that together we are the law and see through the ideological veil of the current legal system, which in their view is abstract and mechanical, the ‘property’ of the state, artificially being kept far away from individual people. Instead of this, a holistic legal vision must be developed in which law – in line with current systems thinking in science – is considered a continuous process of negotiation to make cultural connections. Because the commons – translated as ‘communal property’ but in fact the very opposite of property – have always worked according to the bottom-up method, they have the potential to become the heart of a new legal system in the shape of a large network which can spread over the world through cooperation and partnership. This ecological community – which includes beside humans also animals and the rest of nature on which our lives depend – must become the basis of a new form of eco legislation. I can see a link here to current ideas about the rising Earth Community.

Of course these ideas are open to criticism. For instance, Matt Ridley has argued (in The Evolution of Everything, p. 33-36) that only the civil law tradition of continental Europe has been created top-down, and that common law has always been created bottom-up. And Capra and Mattei do not mention other adventurous legal scholars like Cormac Cullinan and Polly Higgins, whose ecologically inspired ideas point in the same direction (see my previous blogs). But this doesn’t alter the fact that they have written a very important book, which deserves to be read by many.   

Note: The book has also been translated into Dutch (in 2016): ‘Ecologie en wet. Naar een nieuwe  balans tussen recht, ecologie en samenleving.’

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