Nature and the Conceit of Law
Coming to this erudite text from Third World Approaches to International Law (TWAlL), I found much to agree with and learn. TWAIL is an anti-colonial anti-imperial disciplinary movement formative to my scholarly development. Over the last decade, I have examined the relationship between law and the environment and its implications for the Global South. Early in this journey, it became evident to me that the way people treat each other mirrored they way they treat their environment and vice versa. For instance, powerful people tend to exploit and objectify human and non-human realms in related ways: racializing and feminizing nature whilst also naturalizing race and gender in parallel mutually reinforcing hierarchies. Jones underscores this dynamic in her crucial opening contention for attentiveness to both exclusionary humanism and anthropocentrism. She holds true to this pledge in her journey through the laws of war and international environmental law. Rather than succumbing to the disciplinary tendency to segregate concerns about people from concerns about the planet, Jones illustrates how injustice in both realms is co-constituted through, among other things, international law.
How can international lawyers overcome this intertwined injustice? Jones incisively identifies the source of the problem as the divide in modern western law between its ideal subjects and objects, creating exploitative relationships between lawmakers (able bodied, heterosexual, propertied white men and those who emulate them) and everyone/everything else. Jones proffers queer posthumanism and the rights of nature as methodological and doctrinal means of subverting this foundational disciplinary divide. Jones notes how ‘LGBTQ+ people have historically been placed on the side of the unnatural’ (p. 123). Queer posthumanism tactically deploys mainstream fear of both the queer subject and the natural environment by fostering material connections between these two marginalized subjects through what Anzaldúa terms ‘mestiza consciousness’, using ‘dehumanization as an opportunity to reconstruct what it means to be human’ (pp. 123-4). Queer posthumanism’s using of border-thinking and hybridity to unmask and transcend false dichotomies is familiar and indeed canonical to postcolonialism and subaltern studies, with these methodologies refining and complementing each other in necessary ways.
Jones provides a sensitive reading of the rights of nature and the variegated legal traditions encompassed by this term, purposefully counteracting the tendency to conflate under a single rubric ‘very different bodies of knowledge and political strategies’ (p.134). She is attentive to the risk that legal recognition of such rights may serve to ‘legitimize the very same system that makes such a resort necessary’ (pp. 144-5). Beyond greenwashing, the greater harm may be the proliferation of a rights-based mentality. I have argued elsewhere that the assumption that people and nature have rights is a dangerous and destructive legal conceit because rights (regardless of their subject) are innately structured by a possessive, narcissistic and alienating logic incommensurable with justice. Accordingly, I am sceptical about granting rights to relationships instead of subjects (pp. 146, 162). Just as Pachamama is not the same as Mother Earth (pp. 133-4), useful legal concepts are transmuted and corrupted through the vocabulary of rights. Kapur’s astute portrayal of the ‘entitled subject, the rights-seeking subject’ that erases other subjectivities (p. 156) may be reproduced infinitely by lawmakers wielding the rights of nature. In contrast, Indigenous laws such as Caring for Country (p. 130) stem from philosophical traditions with deep wisdom about human-nature relations, whereby law categorically disavows the hubris of assigning rights to an ever-expanding range of subjects.
The politics of contemporary knowledge production entail a perpetual risk of what Bhambra calls methodological whiteness, where new ways of theorizing not only ‘displace important issues surrounding inequalities’ (p. 14) but reproduce inequality. Jones observes that ‘[i]t is no coincidence that the majority of transhumanists are white men from the global north’ (p. 13). The promise of posthuman feminism lies in attentiveness to who is constituting this field. While the insights of Bennett on vibrant matter, Kirby on networks of interlocking assemblages, and Grear on the mutual constitution of agency, space and landscape is vital for disciplinary renewal (p. 113-4), the challenge for a TWAIL scholar is that these insights are not new to diverse philosophical traditions across the Global South. For instance, my knowledge of the oneness of all things, my rejection of dualism, my ability to appreciate differentiation upon multiple axes simultaneously (p. 119) is not inherited through Lucretius, Spinoza and Deleuze (pp. 118-9) but the scholarly traditions of Patanjali, Zhuang Zhou, Dushun, and Atmananda whose contributions were minimized, erased, or rendered unspeakable by Eurocentric knowledge claims. International law needs a scholarly praxis that undoes rather than replicates such erasures.
Returning then to where I began – the inextricability of how people treat each other from how they treat their environment – Jones is humble and self aware throughout this text, accepting ‘that not all can be known but to seek to know and understand what can’ (p. 150). She gets to the heart of the matter when she asks: If the world really is a witty agent with an independent sense of humor as observed by Haraway, how can that wit and agency be fully understood by humans, let alone represented by them in court? (p. 149) The question made me chuckle as only us lawyers would ever wonder about such a thing, blind to the limits of modern law, refusing to accept that we are not the stewards of nature; it has always been the other way around.